PEOPLE v. DODARD (1998)

Defendant is charged in an information with Falsely Reporting an Incident in the Third Degree.   N.Y. Penal Law (P.L.) § 240.50(3).   He moves to dismiss the information in the interest of justice.   N.Y.Crim.Proc.Law (C.P.L.) §§ 170.30(1)(g), 170.40(1).   He also moves for an order compelling discovery and inspection, C.P.L. §§ 240.20, 240.60, 240.80;  suppressing defendant's statements because they were involuntary, C.P.L. §§ 60.45, 710.20(3), 710.60;  People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), or the fruit of an unlawful seizure of defendant, C.P.L. § 710.60;  Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979);  and precluding identification evidence, other statements by defendant, and impeachment evidence should defendant testify in his own defense.   C.P.L. §§ 240.43, 240.70, 710.30(3).

In determining the motions, the court has considered the factual allegations in the accusatory instrument and supporting deposition, defendant's motion papers, and the People's response and Voluntary Disclosure Form. For the reasons set forth below, the court denies each of defendant's motions.

I. THE MOTION TO DISMISS IN FURTHERANCE OF JUSTICE

A. The Factual Allegations

The accusatory instrument alleges that on October 9, 1997, at about 1:00 p.m., defendant telephoned 911.   He informed responding police officers that burglars had stolen a television and cable box from his apartment at 311 East 109th Street, New York County.   The accusatory instrument also alleges that after the officers completed a complaint report defendant admitted he sold the television and cable box before reporting the alleged burglary.

Attached to the People's papers in response to defendant's motions is a copy of defendant's statement to police made approximately three and a half hours after his 911 call.   Defendant admits that about 12:00 noon on October 9, 1997, he told his cable company his television set and cable box had been “lost.”   The cable company advised him to call the police and obtain a complaint report.   He also admits that earlier on the same day, about 4:00 a.m., he sold his television set and cable box to someone he met in his neighborhood.   Defendant does not dispute the accuracy or sufficiency of the facts alleged in the accusatory instrument or in his written statement to the police following his arrest.

In support of the motion to dismiss, defendant attaches photocopies of correspondence from Diane Lanier, MD, and Benjamin Tallerson, Assistant Team Leader, both written under the letterhead of “Pathways to Housing,” East Harlem ACT Team, Yorkville Common Pantry, 8 East 109th Street, New York, NY. Dr. Lanier states that defendant, a victim of chronic schizophrenia, normally receives daily medication to prevent psychotic lapses, characterized by rapid behavior changes, poor judgment, limited insight, and difficulty understanding the consequences of his behavior.   On October 8, 1997, she noted on defendant's chart that at his request, her office recently had permitted defendant to report for his medication three times per week, rather than daily, “because his medication compliance was good.”   On October 15, 1997, she was concerned that defendant “was not taking his medication” because on previous occasions, when defendant's medication “pick up” changed from daily to three times weekly, he occasionally “missed some of his doses.”

Mr. Tallerson describes Pathways to Housing as a program serving formerly homeless people with “housing, intensive case management, advocacy and money management.”   He reports that defendant is “compliant” with program requirements.

B. The Parties' Arguments

In support of the motion, defendant argues that his medical condition and the victimless nature of the offense require dismissal of the information in the interest of justice.   Pointing out that the acts on which the criminal charge is based occurred when he may have failed to take his medication, defendant urges that he could not have understood the consequences of his acts.   He also argues that because the offense is victimless, dismissal of the charge would have little impact on the welfare and safety of the community.

The People respond that defendant's mental health and its bearing on his legal responsibility for his acts are issues to be raised at trial, not litigated in a pretrial motion to dismiss.   The People also dispute that the crime is victimless, citing the costs of pointless investigations and the deflection of police resources from the investigation of actual crimes.

C. The Applicable Law

 The motion to dismiss pursuant to C.P.L. § 170.30(1)(g) should be granted only when

required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ․ would constitute or result in injustice.

C.P.L. § 170.40(1).   A trial court's “residuum of inherent discretion” to dismiss a criminal charge on this basis, People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377 (1976) (Fuchsberg, J., concurring), “should be ‘ “exercised sparingly.” ’ ”  People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 (1st Dep't 1992) (citations omitted);  People v. Crespo, 244 A.D.2d 563, 564, 665 N.Y.S.2d 676, 677 (2d Dep't 1997).   The court should invoke this discretion only in “the unusual case that cries out for fundamental justice.”  People v. Belge, 41 N.Y.2d at 62-63, 390 N.Y.S.2d 867, 359 N.E.2d 377.

In determining whether such a case is before the court, C.P.L. § 170.40(1) requires the court, “to the extent applicable,” to “consider, individually and collectively,” the determinants listed in the statute.   The authority for the decision must be explicit, and the decision must be reached through “a sensitive balancing of the interests of the individual and of the People.”   People v. Rickert, 58 N.Y.2d 122, 127, 459 N.Y.S.2d 734, 446 N.E.2d 419 (1983).

D. This Court's Decision

Application of the relevant statutory criteria to the record here does not warrant dismissal in furtherance of justice.

1. Application of the Criteria Under C.P.L. § 170.40

Defendant does not dispute, at least for purposes of this motion, that the facts alleged in support of the charge, if true, would warrant a criminal conviction.   C.P.L. § 170.40(c).   Nor does he present any evidence of official misconduct or overreaching in the investigation of the offense or the decision to charge defendant with commission of a crime.   C.P.L. § 170.40(e).   The People properly point out that the alleged conduct is neither trivial nor victimless. False reports of criminality impair the ability of the police to perform their proper function and diminish the resources available for the public's protection.   A failure to prosecute such incidents would encourage reckless and manipulative abuses of the police's duty to respond to citizens' needs, cause wrongful investigations of the innocent, C.P.L. §§ 170.40(a), (b), and (g), and undermine public confidence in the criminal justice system.  C.P.L. § 170.40(h);  People v. Arbeiter, 169 Misc.2d 771, 773, 650 N.Y.S.2d 915 (App. Term 1st Dep't 1996).

Defendant's principal appeal is to C.P.L. § 170.40(d), the “ history, character and condition of the defendant.”   He alleges that insofar as his conduct may be attributed to his chronic psychiatric disability and the lack of proper medication, no prosecutorial purpose or public interest would be served by subjecting him to a criminal proceeding.

Mental illness could be a basis for finding several of the criteria listed in C.P.L. § 170.40, dictating dismissal in furtherance of justice.   The most obvious is § 170.40(d), the “condition of the defendant.”   Mental illness could also warrant a finding that the “circumstances of the offense,” § 170.40(a), or “the purpose and effect of imposing upon the defendant a sentence authorized for the offense,” § 170.40(f), compel dismissal or “that a judgment of conviction would serve no useful purpose.” § 170.40(j).   In so doing, however, the court must be careful not to substitute a finding under § 170.40 for a finding of the defense of mental incapacity to commit the offense charged, under P.L. §§ 25.00(2) and 40.15, or of defendant's incompetency to stand trial, under C.P.L. § 730.20, both of which must be established through other rigorous procedures.

 In this case, defendant's mental condition does not meet the requirements for the motion for two main reasons.   The primary thrust of defendant's motion is that his mental condition and inadequate medication to control the condition impacted his conduct at the time of the offense.   The record before the court here, however, does not support any such inference or that those factors should impact prosecution of the offense charged.   Second, to the extent his alleged criminal behavior is attributable to those factors, or they now affect his fitness to proceed, these issues are precisely the ones to be resolved through other proper procedures.

2. The Record Regarding Defendant's Mental Condition

Here, although the statements that defendant suffers from a psychiatric disability requiring daily medication to maintain normal functioning are not sworn by the persons with personal knowledge, the court accepts these facts for purposes of this motion.   Dr. Lanier states, however, that defendant reported to her office to obtain his medication the day before the alleged criminal incident and that his history of “medication compliance,” presumably his capacity to self-medicate between office visits, had been “good.”   On October 15, 1997, when Dr. Lanier questioned defendant's compliance with his medication requirements, it was six days after the incident.   From these available facts, the court cannot conclude that defendant was inadequately medicated at the time of the incident, much less that a lack of medication was the proximate cause of his criminal conduct.   See People v. Hudson, 217 A.D.2d 53, 56, 634 N.Y.S.2d 752 (2d Dep't 1995).

Upon this record the court cannot attribute defendant's behavior to his mental disability.   Mr. Tallerson states that defendant is compliant with the requirements of the program assisting him with his practical needs.   Further, defendant's history reveals an extensive involvement with the criminal justice system, including convictions for violent felonies and terms of incarceration.   Although his arrests since 1992 are for relatively minor offenses, the court cannot conclude that defendant's disposition to criminal conduct is now attributable solely to his psychiatric condition.   See, e.g., People v. Cohen, 112 Misc.2d 377, 380-81, 447 N.Y.S.2d 90 (Crim.Ct.N.Y.Co.1981).

3. The Proper Procedures Were the Record to Support Defendant's Claims Here

In any event, a motion pursuant to C.P.L. § 170.40 is not the proper way to litigate potential trial defenses.  People v. Hudson, 217 A.D.2d at 56, 634 N.Y.S.2d 752.  “[W]hether the defendant[ ] may have a viable defense or the People a weak case are not compelling factors ․ to circumvent the prosecutorial discretion of the People.”  People v. Premier House, 174 Misc.2d 163, 169, 662 N.Y.S.2d 1006 (Crim.Ct. Kings Co.1997).   It is for the fact finder at trial to determine whether defendant “lacked substantial capacity to know or appreciate either ․ [t]he nature and consequences of [his] conduct;  or ․ [t]hat [his] conduct was wrong,” P.L. § 40.15, and generally, whether his mental condition “negate[s] a specific intent necessary to establish guilt.”  People v. Segal, 54 N.Y.2d 58, 66, 444 N.Y.S.2d 588, 429 N.E.2d 107 (1981).   This court cannot now make that finding and issue a declaratory ruling that defendant was not responsible for his conduct by reason of a mental disease or defect, under the guise of a motion to dismiss in the interest of justice.   P.L. §§ 25.00(2), 40.15;  People v. Kohl, 72 N.Y.2d 191, 195, 532 N.Y.S.2d 45, 527 N.E.2d 1182 (1988);  People v. Hudson, 217 A.D.2d at 56, 634 N.Y.S.2d 752.   Similarly, while a finding that defendant is incompetent to stand trial would mandate dismissal of these misdemeanor charges, defendant's competency is not now before the court.   C.P.L. §§ 730.40(2), 730.50(1);  People v. Schaffer, 86 N.Y.2d 460, 464-65, 634 N.Y.S.2d 22, 657 N.E.2d 1305 (1995).

4. Conclusion

In sum, even if defendant's factual allegations are accepted as true, he has failed to make a prima facie showing of any of the requisite circumstances warranting dismissal in furtherance of justice.   Therefore the court must deny the motion without a hearing.  People v. Thomas, 108 A.D.2d 884, 885, 485 N.Y.S.2d 579 (2d Dep't 1985);  People v. Schlessel, 104 A.D.2d 501, 502, 479 N.Y.S.2d 249 (2d Dep't 1984);  People v. Moore, 167 Misc.2d 994, 996, 637 N.Y.S.2d 652 (Crim.Ct.N.Y.Co.1996).

II. THE MOTIONS FOR DISCOVERY AND TO SUPPRESS OR PRECLUDE EVIDENCE

On March 4, 1998, Judge A. Kirke Bartley Jr. precluded defendant from filing pretrial motions other than the motion pursuant to C.P.L. § 170.40, because the 45-day statutory period and whatever additional time defendant was granted to make those motions had expired.   C.P.L. § 255.20(1).   Therefore the court must summarily deny the remainder of defendant's motions.   C.P.L. § 255.20(3).   Defendant retains the rights to renew his motion regarding impeachment evidence pursuant to C.P.L. § 240.43 and to file additional motions upon a showing of good cause pursuant to C.P.L. § 255.20(3).

LUCY BILLINGS, Judge.