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What To Do If the District Attorney Does Not Wish to Prosecute But the Judge Does

The Third Department determined a trial judge exceeded his powers when he ordered the prosecutor to produce witnesses at a suppression hearing.  The prosecutor did not wish to proceed with the case. The Third Department determined that the prosecutor could not be ordered to produce witnesses at the suppression hearing (the prosecutor’s tactic for dismissing the case) because the CPL did not require the prosecution to present such witnesses. The Third Department went on to suggest that, in this situation, a motion for “dismissal in the interest of justice” might be used, or the prosecutor could simply not present any inculpatory proof at trial:

A district attorney has “unfettered discretion to determine whether to prosecute a particular suspect” … .  Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” …; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney … .  * * *  Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation generally will not create difficulty in obtaining swift dismissal where a defendant also desires dismissal, since various procedures are available for disposing of a pending criminal case.

For example, a motion to dismiss in the interest of justice can be made (see CPL 170.40; see also CPL 210.40).  Such motion can be initiated by a defendant, a district attorney, or even by the court before which the case is pending * * *. Although there are statutory criteria that must also be addressed as part of a motion to dismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria include a catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in which the criteria are weighed and applied … .  * * *

Another, but more time consuming, option is similar to the one ostensibly embarked upon by petitioner.   Consistent with the CPL, a district attorney can stipulate at a suppression hearing to the granting of a defendant’s motion (see CPL 710.60 [2] [b]).   Further, the failure at an eventual trial to produce any inculpatory proof would result in dismissal and, since reprosecution would then be precluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolle prosequi would not be implicated … . Matter of Soares v Carter…, 517191, 3rd Dept 1-23-14

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE ROAD LEADING TO PETITIONER’S PROPERTY WAS PROPERLY CERTIFIED “ABANDONED” SUCH THAT THE MUNICIPALITY IS NOT RESPONSIBLE FOR ITS MAINTENANCE; AND PETITIONER STATED AN EQUAL-PROTECTION CLAIM UNDER 42 USC 1983 (THIRD DEPT).
DEFENDANT’S AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED; JUSTIFICATION DEFENSE APPLIES ONLY TO PERSONS, NOT ANIMALS; THE PRESENTENCE INTERVIEW AT THE PROBATION DEPARTMENT IS NOT A CRITICAL STAGE OF THE PROCEEDING REQUIRING THE PRESENCE OF DEFENDANT’S ATTORNEY (THIRD DEPT).
FAILURE TO INSTRUCT SPECTATORS TO REMOVE OR COVER UP T-SHIRTS MEMORIALIZING THE MURDER VICTIM WAS HARMLESS ERROR.
CLAIMANT’S REQUEST FOR RECLASSIFICATION BASED UPON A CHANGE IN CONDITION FILED AFTER THE EXPIRATION OF CLAIMANT’S CAPPED INDEMNITY BENEFITS WAS NOT UNTIMELY (THIRD DEPT).
Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error—The Prosecutor Effectively Told the Jury Another “Witness” Had Identified the Defendant, But that “Witness” Did Not Testify and Could Not, Therefore, Be Cross-Examined
THE IMMEDIATE NEIGHBORS HAD STANDING TO CONTEST THE APPROVAL OF THE CONSTRUCTION OF A DOLLAR STORE; THE PLANNING BOARD DID NOT NEED TO SEND THE MATTER TO THE ZONING BOARD OF APPEALS TO INTERPRET A ZONING ORDINANCE WHICH WAS ONLY A GUIDELINE CONCERNING THE ALLOWED LENGTH OF A BUILDING FACADE; THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (THIRD DEPT).
PETITIONER WAS NOT ALLOWED TO PRESENT RELEVANT DOCUMENTARY EVIDENCE, DETERMINATION ANNULLED.

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