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The PEOPLE of the State of New York, Plaintiff, v. Carl STANBACK, Defendant.
The defendant moves for an order, pursuant to CPL §§ 210.20(1)(i) and 210.40, dismissing in the interest of justice the count of attempted murder in the second degree. The People oppose defendant's motion. Upon review of the parties' respective papers and the court file, defendant's motion is granted to the extent that a Clayton hearing is ordered.
A grand jury indicted defendant under Kings County Indictment Number 10850/2013, charging him with attempted murder in the second degree and other related offenses for an incident which occurred on December 21, 2013, at the wake for defendant's aunt, Loretta.
The defendant's trial by jury commenced on or about October 13, 2015. During the trial, the People presented evidence of defendant's close relationship with Loretta. Prior to her death, Loretta was diagnosed with terminal lung cancer and chose to remain in the care of the complainant, who is her adopted daughter, rather than admit herself to a hospice. After learning that Loretta passed away, the defendant exchanged Facebook messages with another family member, in which he claimed that Loretta had accused the complainant of abusing her, but refused to report the abuse to the authorities. The defendant made it clear that he viewed the complainant as the catalyst for Loretta's ultimate demise.
At the wake for his Aunt Loretta, the defendant grabbed the complainant by the hair, placed a revolver against her head and pulled the trigger, but the revolver, a .38 caliber Smith and Wesson from the early 1900's, did not fire. According to the People's ballistics expert, while the gun was otherwise operable, at the time the defendant pulled the trigger, the gun was loaded with incompatible ammunition. In other words, it would have been impossible for the revolver to discharge any of the loaded 9–millimeter Luger bullets.1 When the gun failed to fire, the defendant used it to strike the complainant about her head. The complainant attested that she suffered headaches and a persistent ringing in her ears as a result of the incident. The defendant himself had to be removed to the hospital as a result of being attacked by angry family members who took the gun away from him and left him bleeding, bruised and unable to walk.
At the close of evidence, the jury was instructed to consider the following charges: attempted murder in the second degree, attempted criminal possession of a weapon in the second degree, assault in the second degree and criminal possession of a firearm. After three days of deliberation, the jury returned a verdict of guilty as to assault in the second degree and criminal possession of a firearm. However, the jurors remained deadlocked with respect to the remaining two charges and indicated that further time to deliberate would be futile. On October 23, 2015, the trial judge discharged the jury and granted defendant's oral motion to dismiss the top two counts of the indictment in the interest of justice. The People appealed that decision solely with respect to the dismissal of Count 1 of the indictment, charging attempted murder in the second degree (PL §§ 110, 125.25  ).
By decision and order dated April 12, 2017 the Appellate Division, Second Department, reversed the trial judge's decision on procedural grounds, reinstated Count 1 without reaching the merits of defendant's argument, and remitted the matter to Supreme Court for further proceedings, without prejudice to renewal of the defendant's motion. Defendant now moves for dismissal of that count in the interest of justice.
CPL § 210.40 provides courts with the discretionary authority to dismiss any count of an indictment, “even though there may be no basis for dismissal as a matter of law,” if dismissal is required “by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice” (see also People v. Clayton, 41 AD2d 204, 208 [2d Dept 1973] ). In resolving a CPL § 210.40 motion, the court must “strike a 'sensitive balance between the individual and the State' interests to determine whether the ends of justice are served by dismissal of the indictment” (People v. Jenkins, 11 NY3d 282, 287 , quoting People v. Clayton, 41 AD2d at 208). Based upon the facts presented, the court must consider any applicable factors enumerated in CPL § 210.40(1) “individually and collectively” prior to deciding that it is in the interest of justice to dismiss the indictment or any of the counts charged therein (id.).
The People correctly aver that several of the statutory factors militate against granting defendant the relief requested herein. However, defendant's motion to dismiss Count 1 of the indictment in furtherance of justice “is not made in a vacuum, isolated from all else; rather, a ruling thereon is based upon the totality of all the circumstances” presented (People v. Tyler, 46 NY2d 264, 266–267  [internal citations omitted] ). The court does not dispute that the People may possess sufficient evidence to support a conviction against defendant for attempted murder in the second degree as a matter of law. Nonetheless, this court concurs with the trial judge's opinion that the People's proof was less compelling as to the attempted murder charge than the assault charge.
In particular, the People's evidence established that the conduct in question—the pulling of the revolver's trigger—could not have caused complainant's death because the revolver was loaded with incompatible ammunition, rendering it inoperable at the time. Where an individual's actions would otherwise constitute an attempt to commit a crime, “it is no defense to a prosecution for such attempt that the crime charged to have been attempted was” factually impossible of commission (PL § 110.10). Thus, had the jury convicted defendant on Count 1 of the indictment, there would have been legally sufficient evidence to affirm defendant's conviction.
Nevertheless, the fact that defendant could not have completed the crime is likely to limit the persuasive value of the People's evidence for at least some jurors. This was evident at the defendant's trial. For, despite having been instructed by the trial court that factual impossibility was not a defense to the crimes charged in Counts 1 and 2 (Count 2 charged attempted criminal possession of a weapon in the second degree), four jurors voted to acquit defendant. Based upon the verdict, the trial court opined that “the jury accepted the basic premise of the People's case in terms of their findings of guilt,” but that they clearly [had]․not been comfortable with the idea of the People's theory of an attempt to commit a crime, under the circumstances.”
Moreover, as defendant notes, there are numerous compelling considerations that weigh in favor of dismissal, many of which comport with the statutorily prescribed factors. Defendant does not deny the gravity of the offense for which he is charged, but he argues that the attendant circumstances mitigate the seriousness of the crime and demonstrate that the incident was aberrational (see CPL § 210.40[a] )—namely, defendant contends that he acted out of extreme despair due to Loretta's death, for which he blamed the complainant.
Defendant also highlights the fact that complainant suffered minimal physical harm (see CPL § 210.40[b] ). When taken to the hospital, complainant only indicated that she had a headache, which she described as a tolerable amount of pain, and was discharged with instructions that she take Tylenol as needed.2 Defendant has served his sentence of two years' incarceration for the assault in the second degree and criminal possession of a firearm charges, which his attorney maintains was an appropriate sentence given the nature of complainant's injuries. Thus, he contends that any additional term of imprisonment would be unduly harsh, particularly since defendant has returned to being a gainfully employed, law-abiding citizen since his release from prison.
In the instant matter, there are statutory factors and pragmatic considerations which provide the court with reason to believe dismissal may be appropriate to further the interests of justice (see People v. Tyler, 46 NY2d at 266 [totality of all the circumstances must be considered in resolving a Clayton motion, not just statutory factors] ). However, there is insufficient information contained in the parties' papers to enable the court to resolve defendant's motion summarily.
Accordingly, defendant's motion for dismissal in the interest of justice is held in abeyance pending a Clayton hearing.
This decision shall constitute the order of the court.
1. The revolver was unloaded when officers recovered it; witnesses to the incident testified, in sum and substance, that they saw the revolver's chamber loaded with bullets and that they observed the bullets fall out of the revolver during the struggle between the defendant and the complainant.
2. This court does not mean to trivialize any emotional or psychological trauma complainant may have endured. However, the People do not allege that complainant suffered any such harm in their opposition papers.
Matthew J. D'Emic, J.
Response sent, thank you
Docket No: 10850/2013
Decided: February 22, 2018
Court: Supreme Court, Kings County, New York.
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