DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED; THE MOTION, BROUGHT AFTER CONVICTION BY A JURY, WAS UNTIMELY AND NOT WARRANTED ON THE MERITS (SECOND DEPT).

The Second Department, in an appeal by the People, determined defendant’s motion to dismiss the criminal mischief count in the interest of justice, after conviction by a jury, should not have been granted. The motion was untimely and not warranted on the merits:

The People argue on appeal, as they did in opposition to the defendant’s motion, that the motion was untimely and therefore should have been denied on that basis. We agree. Under the circumstances, the Supreme Court should have denied the branch of the defendant’s motion which was pursuant to CPL 210.40(1), as he failed to show good cause for seeking that relief more than 45 days after his arraignment … .

In any event, we are not persuaded that the interest of justice was served by the dismissal of the criminal mischief in the third degree count of the indictment in this case. “The power to dismiss an indictment in furtherance of justice is to be exercised sparingly, in those cases where there is some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment . . . would constitute or result in injustice'” … . In this case, the Supreme Court improvidently exercised its discretion in substituting its own judgment concerning the credibility of the trial witnesses and the culpability of the defendant for that of the jury … . Additionally, “[t]here is nothing in the record before us that marks the prosecution of this defendant as extraordinary or one which cries out for justice beyond the confines of conventional considerations” … . Accordingly, we reinstate the count of criminal mischief in the third degree, and remit the matter for sentencing. People v Pfail, 2020 NY Slip Op 03252, Second Dept 6-10-20