PEOPLE v. ANTHONY (2000)

Appeal by the People from an order of the Supreme Court, Queens County (Thomas, J.), dated January 22, 1999, which granted the defendant's motion to dismiss the indictment in the furtherance of justice pursuant to CPL 210.40.

ORDERED that the order is reversed, as a matter of discretion in the interest of justice, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

 The power to dismiss an indictment in the interest of justice should be exercised sparingly, in those rare cases where there is a “compelling factor” which clearly demonstrates that prosecution of the indictment would be an injustice (see, CPL 210.40[1];  People v. Crespo, 244 A.D.2d 563, 564, 665 N.Y.S.2d 676).   We find no such compelling factor in this case.

 Contrary to the Supreme Court's determination, there is no evidence of law enforcement misconduct in connection with any alleged cooperation agreement (see, People v. Anthony C., 234 A.D.2d 379, 651 N.Y.S.2d 877).   The evidence against the defendant is overwhelming.   The defendant has a prior property crime conviction and was on parole at the time of this crime.   The societal interest in deterring property crimes weighs heavily against dismissal.   That the defendant has served eight months in prison in connection with this crime is insufficient to compel the conclusion that prosecution on the indictment would result in an injustice (see, CPL 210.40;  People v. Crespo, supra, at 564, 665 N.Y.S.2d 676;  People v. Lagnese, 236 A.D.2d 629, 630, 654 N.Y.S.2d 691).   Under the circumstances, the Supreme Court improvidently exercised its discretion in dismissing the indictment.

MEMORANDUM BY THE COURT.