The People of the State of New York, Appellant, v. Christopher R. Holmes, Respondent. (2024)

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the superseding misdemeanor information is denied, the information is reinstated, and the matter is remitted to the City Court for all further proceedings.

Insofar as is relevant to this appeal, on December 15, 2022, defendant was charged in a superseding misdemeanor information with criminal mischief in the fourth degree (Penal Law § 145.00), menacing in the second degree (Penal Law § 120.14) and assault in the third degree (Penal Law § 120.00 [1]). The People submitted a certificate of compliance and statement of readiness in February 2023. Thereafter, the case was adjourned numerous times and bench warrants were issued. Defendant was returned on the warrant and the case was adjourned to June 22, 2023 for trial, on which date the People requested a two-week adjournment because their "fully cooperative" complainant had been improperly served with the trial subpoena. Defense counsel objected and orally moved to dismiss the superseding misdemeanor information. Upon finding that the People "had ample time to get their witness here," the City Court dismissed the information. The instant appeal by the People ensued.

It is well settled that a trial court can dismiss a pending criminal prosecution only upon the limited grounds set forth in the CPL (see Matter of Holtzman v Goldman, 71 NY2d 564 [1988]; People v Douglass, 60 NY2d 194 [1983]; People v Zuckerman, 72 Misc 3d 127[A], 2021 NY Slip Op 50587[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Atta-Poku, 63 Misc 3d 131[A], 2019 NY Slip Op 50414[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Here, the City Court's dismissal of the superseding misdemeanor information was improper as it was not based on any statutory ground (see e.g. CPL 160.50, 170.30), and the court did not have the inherent authority to dismiss the information based upon the unavailability of the People's witness, which ground has been considered a "failure to prosecute" (see Douglass, 60 NY2d at 204-205; Zuckerman, 2021 NY Slip Op 50587[U]; Atta-Poku, 2019 NY Slip Op 50414[U]; People v Alonso, 57 Misc 3d 155 [A], 2017 NY Slip Op 51611[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Ramos, 37 Misc 3d 143[A], 2012 NY Slip Op 52293[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

Accordingly, the order is reversed, defendant's motion to dismiss the superseding misdemeanor information is denied, the information is reinstated, and the matter is remitted to the City Court for all further proceedings.

GARGUILO, P.J., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 14, 2024