PEOPLE v. CANDELARIA (2008)

Appeal by the People from an order of the Supreme Court, Kings County (Lewis, J.), entered June 7, 2006, which, after a nonjury trial in which the defendant was found guilty of criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, granted the defendant's motion pursuant to CPL 210.40 to dismiss the indictment in furtherance of justice.

ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 210.40 to dismiss the indictment in furtherance of justice is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for sentencing before a different justice.

 “The discretionary authority to dismiss an indictment in furtherance of justice pursuant to CPL 210.40 should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution of the indictment would be an injustice” (People v. Sherman, 35 A.D.3d 768, 768, 825 N.Y.S.2d 770 [internal quotations omitted];  see People v. M.R., 43 A.D.3d 1188, 1188, 841 N.Y.S.2d 799;  People v. Ward, 300 A.D.2d 418, 418, 750 N.Y.S.2d 786;  People v. Flemming, 291 A.D.2d 506, 506, 738 N.Y.S.2d 230;  People v. Anthony C., 269 A.D.2d 402, 402, 704 N.Y.S.2d 264;  People v. Crespo, 244 A.D.2d 563, 564, 665 N.Y.S.2d 676).   Upon consideration of the circumstances of this case and the factors set forth in CPL 210.40(1), we conclude that there is no compelling factor which warrants dismissal of the indictment in furtherance of justice (see People v. M.R., 43 A.D.3d at 1188, 841 N.Y.S.2d 799;  People v. Sherman, 35 A.D.3d at 768, 825 N.Y.S.2d 770;  People v. Ward, 300 A.D.2d at 418-419, 750 N.Y.S.2d 786;  People v. McIlwain, 300 A.D.2d 320, 321, 751 N.Y.S.2d 503;   People v. Flemming, 291 A.D.2d at 506, 738 N.Y.S.2d 230;  People v. Anthony C., 269 A.D.2d at 402, 704 N.Y.S.2d 264;  People v. Crespo, 244 A.D.2d at 564, 665 N.Y.S.2d 676;  see also People v. Pittman, 228 A.D.2d 225, 226, 643 N.Y.S.2d 560).   Accordingly, the Supreme Court erred in granting the defendant's motion pursuant to CPL 210.40 to dismiss the indictment in furtherance of justice.