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SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANT’S MOTION TO DISMISS THE INDICTMENT IN THE FURTHERANCE OF JUSTICE WITHOUT HOLDING A HEARING BECAUSE ESSENTIAL FACTS WERE IN DISPUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in an appeal by the People, determined defendant’s motion to dismiss an indictment in the furtherance of justice should not have been granted without a hearing because the facts were in dispute. The Second Department also noted that the defendant had demonstrated good cause for bringing the motion after the 45-day deadline:

… [T]he Supreme Court should not have decided the motion without conducting a hearing. CPL 210.40 authorizes the court to dismiss an indictment or any count thereof in furtherance of justice, as a matter of judicial discretion, when, after considering certain enumerated factors, the court finds “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”… . In deciding such a motion, “a 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” … . “Such a value judgment hinge[s] on the production of facts in the possession of the prosecution and the defendant'”… . CPL 210.45 requires a hearing when the facts essential to the determination of a motion made pursuant to CPL 210.40 are in dispute … . Here, since the essential facts were in dispute, the court should have conducted a hearing before making its findings of fact … . People v Burke, 2019 NY Slip Op 05991, Second Dept 7-31-19

 

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THE REMAINDER BENEFICIARIES’ ACTION ALLEGING THE EXECUTOR’S VIOLATION... DEFENDANT RAISED A QUESTION OF FACT WHETHER THE TERMS OF THE NOTE REFLECTED...