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Woman was upset at the death of her husband


The material facts are not in dispute. On April 9, 2009, at about 2:36 A.M., the Defendant was stopped in her vehicle by Monroe County Sheriff’s Sergeant on Route 390 South, north of Jefferson Road, in the Town of Henrietta, County of Monroe, State of New York. The Defendant spoke with the Sergeant and was interviewed by another officer, Deputy Sheriff. The Deputy administered five (5) sobriety tests, all of which the Defendant reportedly failed. A DWI Lawyer said that, the Deputy then arrested the Defendant and transported her to B Zone, where she was observed and administered a breathalyzer test. The breathalyzer test allegedly showed the Defendant’s Blood Alcohol Content to be .17% B.A.C. The Deputy proceeded to read the Defendant her Miranda rights. The Defendant waived those rights and agreed to answer the Deputy’s questions. As set forth in the Deputy’s Alcohol Influence Report, the Defendant allegedly made several statements that she was highly upset about the death of her late husband.

A New York Criminal Lawyer said, the Sergeant charged the Defendant with a violation of New York State Vehicle and Traffic Law §1180(d). The Deputy charged the Defendant with violations of New York State Vehicle and Traffic Law §1192(2) (DWI) (Driving While Intoxicated, per se), and Vehicle and Traffic Law §1192(3) Driving While Intoxicated.

A Defense Lawyer said that, by Notice of Motion dated October 8, 2009, the Defendant moved to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40. The People submitted the written response of the Assistant District Attorney, dated October 18, 2009, in opposition to the Defendant’s motion. Both parties waived a hearing on the matter. In support of the Defendant’s motion, it is alleged that the Defendant had endured life shattering events in the months leading up to her arrest on April 9, 2009. Those events allegedly led the Defendant to self-medicate and to behave in a fashion that was “the antithesis of her normal behavior prior to said events.”

The issue in this case is whether defendant’s motion to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40 should be granted.

The court said that the New York State Criminal Procedure Law §170.40(1) gives a Court the authority to dismiss an information, a simplified traffic information, a prosecutor’s information, or a misdemeanor complaint in the interest of justice, even though there may be no basis for dismissal as a matter of law, but where such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration, or circumstance which clearly demonstrates that conviction or prosecution of the Defendant would constitute or result in injustice. Although the decision to dismiss information lies within the discretion of the Trial Judge, that discretion is not absolute or uncontrolled.

The statute states that, in determining whether such compelling factor, consideration, or circumstance exists, the Court must, to the extent applicable, examine and consider, individually and collectively, the following factors: a) The seriousness and circumstances of the offense; b) The extent of harm caused by the offense; c) The evidence of guilt, whether admissible or inadmissible at trial; d) The history, character and condition of the Defendant; e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the Defendant; f) The purpose and effect of imposing upon the Defendant a sentence authorized for the offense; g) The impact of a dismissal on the safety or welfare of the community; h) The impact of a dismissal upon the confidence of the public in the criminal justice system; i) Where the Court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and j) Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point “catechistic on-the-record discussion” of all ten (10) factors listed under Criminal Procedure Law §170.40(1). Where the Trial Court examines and considers the applicable statutory factors, the decision lies within the discretion of the Trial Court. Prior to the offenses charged in this matter, the Defendant endured a series of misfortunes through no fault of her own. On December 1, 2007, the Defendant’s husband was shot to death while hunting in the Southern Tier of New York State. Shortly thereafter, in February of 2008, the Defendant suffered a miscarriage of her deceased husband’s baby. During the Spring of 2008, a criminal investigation was conducted regarding the death of the Defendant’s husband, whereby it was determined that his death was the result of a homicide. In June of 2008, the Defendant’s step-son, whom the Defendant had helped raise for more than four (4) years, was removed from the Defendant’s household due to the child’s misconduct. In March of 2009, the suspect accused of killing the Defendant’s husband was acquitted of homicide. The acquittal resulted in the Defendant losing all faith in the criminal justice system, and even in God.

The following month, April of 2009, the Defendant was arrested for DWI, which was her first offense, and her first and only contact with the criminal justice system. Since the time of her arrest, the Defendant has ceased drinking alcohol, and she has become reacquainted with her faith and church, both of which discourage even moderate use of alcohol.

The Defendant requested that the Court focus on six (6) of the factors set forth in C.P.L. §170.40(1) in determining this motion. Specifically, the Defendant asserted that there was no harm caused by the offenses charged. The Defendant has no criminal record. She is a mother, wife, student, and religious person. There is no purpose in further punishing the Defendant, inasmuch as she has already suffered. A dismissal would not impact the welfare of the community. A dismissal under the circumstances set forth herein would not undermine the confidence of the public in the criminal justice system. Finally, the Defendant asserts that it was a particular series of misfortunes which led the Defendant to commit the acts leading to her arrest. She now is sober, embracing her religion, and excelling in her studies.

In response, the People have conceded that no one was injured as a result of the Defendant’s alleged conduct. The People argue, however, that the incident was serious, and that there is substantial evidence of the Defendant’s guilt in this matter. The People further assert that dismissal of the charges would undermine the seriousness of the charges, the importance of public safety, public confidence in the criminal justice system and the complainants’ attitudes in regard to the handling of DWI matters by the criminal justice system.

This Court recognizes the serious nature of driving while intoxicated. Furthermore, there is, arguably, evidence of the Defendant’s guilt, and there is no evidence of exceptionally serious misconduct of law enforcement personnel. Nevertheless, in weighing each of the factors individually, and collectively, as outlined in the statute, this Court hereby finds that a dismissal of the charges against the Defendant in the interest of justice is warranted. The Defendant’s actions produced little or no harm to anyone, and no motor vehicle accident was involved. The Defendant has no prior criminal record. There is relatively little useful result that will come of a sentence authorized from the offense, and there has been no showing that dismissing the case will harm the public safety or confidence in the criminal justice system. Accordingly, the Defendant has alleged sufficient, compelling facts to constitute a legal basis supporting the motion, and conviction or prosecution of the Defendant would constitute, and result in injustice.

In light of the foregoing, this Court finds that the facts of this case warrant dismissal, in furtherance of justice, of all charges against the Defendant now pending before this Court in the above-captioned matter.

If you feel that your case can be dismissed in the interest of justice, ask for the assistance of a New York DWI Defense Attorney and New York Criminal Attorney in order to represent your case. Call us at Stephen Bilkis and Associates for more information.

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