Error for Trial Judge to Defer to Prosecutor’s Wish to Dismiss a Count of an Indictment—The Judge Must Exercise His or Her Own Discretion on the Issue

The First Department determined the trial judge had erroneously deferred to the prosecutor’s wish to dismiss a count of the indictment before submitting the case to the jury.  The judge, not the prosecutor, has the discretion to dismiss counts.  The error was deemed harmless however:

Defendant argues on appeal that the court improperly deferred to the People’s desire to withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d 690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degree assault and first-degree vehicular assault, in connection with his having intentionally driven a pickup truck into a police officer. Before the trial of those charges, the prosecutor announced the People’s intention to withdraw the vehicular assault count, and the court agreed with the prosecutor that the People had “the authority” to do so. The Court of Appeals disagreed, holding that “the issue was one for the trial court’s discretion, not the prosecutor’s” (18 NY3d at 695). * * *

On the merits, we agree with defendant that the court’s position with respect to the count was no different from that of the trial court in Extale, which was found by the Court of Appeals to be erroneous. No fair reading of the trial record supports the People’s argument that the trial court exercised its discretion in dismissing the charge. Indeed, its comment that “the People can dismiss [the count]” was equivalent to the Extale trial court’s comment that the prosecutor “ha[d] the authority” to dismiss the vehicular assault count (18 NY3d at 693). People v Silvestre, 2014 NY Slip Op 04562, 1st Dept 6-19-14