A member of the New York City Police Department was detailed to work with the Drug Enforcement Administration Task Force (Task Force). His usual assignment with the Task Force was as an undercover officer (office-one), and that was the assignment he was performing, when, on 16 July 1981, he met with an informant who later introduced him with the co-defendant.
Thereafter, meetings were set and arrangements were made for officer-one to buy quantities of cocaine (cocaine possession). The co-defendant said that he could deliver a pound from someone that he knew, the herein defendant. Accompanied by another officer (officer-two), upon their meet, defendant only promised to deliver two ounces of cocaine for the reason that they didn’t know each other. Subsequently, the parties agreed to buy the two ounces of cocaine. Shortly after officer-two produced a brown bag with money, and, while defendant was looking into the money bag, officer-two placed defendant under arrest.
Later that night, following defendant’s arrest, the co-defendant was also arrested.
On 18 September 1981, by a three-count indictment, filed, the Grand Jury of the Special Narcotics Courts of the City of New York charged defendant and the co-defendant with the crime of a Criminal Sale of a Controlled Substance in the Second Degree, and two counts of the crime of Criminal Possession of a Controlled Substance in the Third Degree.
On 31 January 1983, defendants were found guilty of the crime of a Criminal Sale of a Controlled Substance in the Second Degree, which is a Class A-II felony. The minimum sentence that may be imposed upon conviction of an A-II felony is not less than three years to life.
During the trial, defendant had been free on $200.00 bail; but, in view of the fact that he had been convicted of an A-II felony the Trial Court, in compliance with the Criminal Procedure Law, remanded defendant, and set 28 February 1983 as the day for sentence. Due to the apprehension felt by the Trial Court about the defendant’s ability to survive incarceration, it ordered that defendant be placed in administrative segregation and put under a suicide watch.
On 4 February 1983, as a result of a post-trial bail application, four days later, the defendant returned to Court with his counsel. After denying the application, the Trial Court granted defendant’s request to address the Court. In substance, the defendant informed the Court: that, during the early morning hours of the day following his remand, after conviction, to Rikers Island, he allegedly had been raped in a holding pen filled with prisoners; that, the alleged rapists had been five black guys who jump and cover me, and they used me; that he complained to the Correction Officers about the alleged rape and they allegedly dismissed his complaint by telling defendant it happens every day; and, that the alleged rape led defendant to an aborted suicide attempt.
In response to defendant’s claim that he had been the victim of a sexual assault, the Trial Court recessed in order to investigate the defendant’s allegations, and to determine why its prior orders to the personnel of the New York City Department of Correction (Correction), to administratively segregate and to maintain a suicide watch concerning defendant, had not been implemented.
In February 8th, it appears that a trial Justice again ordered that defendant be taken to Bellevue Hospital.
On 25 February 1983, defendant moved dismisses the indictment in the interest of justice. Our examination of the moving papers in support of this motion indicate that they rely heavily for their merit upon defendant’s alleged mistreatment at Rikers and defendant’s assertions that he is psychologically unfit for imprisonment. Significantly, in defendants’ own affidavit in support of his motion he does neither discuss his conviction, nor does he assert that he is innocent of that crime.
On 28 March 1983, the court denied the People’s recusal motion as being without merit. Subsequently, the People petitioned the Court for an order in the nature of a writ of prohibition to prohibit the subject judge from presiding over the post-trial proceeding concerning the determination of defendant’s CPL section 210.40 motion.
After the completion of the so-called Clayton Hearing, the Trial Court granted defendant’s CPL section 210.40 motion, set aside the jury verdict and dismissed the indictment.
The question presented on this appeal by the District Attorney is whether or not after a jury convicted defendant of the crime of a Criminal Sale of a Controlled Substance in the Second Degree, Criminal Trial Term abused its discretion by setting aside that verdict and dismissing the indictment, upon the ground that such action was required in the interest of justice.
The court disagrees and finds that the Trial Court abused its discretion, by failing to properly balance the ten statutory criteria set forth in CPL, in that the interests of the defendant and the State were not considered equally. We find that the Trial Court unfairly favored the defendant. As the Court stated in the landmark case of People v. Clayton, there is a sensitive balance between the individual and the State that must be maintained in applying the test of the interests of justice.
After an evaluation of the criteria, both individually and collectively, the court concludes that there was no justification to dismiss this indictment. The court shares the Trial Court’s well intentioned concern that prison inmates be protected from assault, including rape. Nevertheless, the court holds that in the instant case, even if the defendant was, in fact, raped while incarcerated awaiting sentencing, such sexual assault is irrelevant to the defendant’s jury conviction of the sale of almost two ounces of cocaine for nearly $4,000.00.
Here, the defendant participated in a substantial drug sale, despite his effort to minimize his complicity. The record clearly shows he sold almost two ounces of cocaine, to an undercover officer, for almost $4,000.00. In addition, he was offering to sell a pound, for $29,000.00. It was testified at trial that defendant was accompanied by a lookout. The cases cited by defendant where drug sales were dismissed in the interest of justice were cases where the defendants became involved due to juvenile poor judgment. This defendant is 36 years of age.
As a result of the court’s finding of irrelevancy to the underlying conviction of the alleged assault, the defendant is not without remedy. If the defendant desires, among other things, he can institute the civil rights action against the prison authorities and, he can request either that he be placed in administrative segregation or in a special prison unit for victim prone inmates. The Trial Court concedes that in an institution where assaults are not uncommon, a prisoner may get court relief in the way of protection or segregation
Moreover, neither the criteria set forth in CPL 210.40 nor the reasons advanced by constitute compelling factors that clearly demonstrate that conviction or prosecution of defendant would constitute or result in injustice. The fact that defendant has no prior criminal record is insufficient to justify a dismissal in the interests of justice. His exemplary background, likewise, does not immunize him from the normal processes of the criminal law. Defendant committed this crime out of greed, not financial need or to obtain money to support a drug addiction. Thus, the Trial Term’s action, therefore, in dismissing was an abuse of discretion.
The Trial Court’s discretion to dismiss in the interest of justice, should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations. These standards were not met here.
In summary, after examining the trial record, the criteria contained in CPL section 210.40, and the record of the Clayton hearing, we conclude that the instant case is not one of those rare instances that warrant the exercise of the dismissal power provided a Trial Justice.
In conclusion, the order of the Supreme Court, New York County, entered 10 February 1984, which, granted defendant’s motion, pursuant to CPL section 210.40, to, in the interest of justice, set aside the defendant’s jury conviction for a criminal sale of a controlled substance in the second degree (PL section 220.41) and dismissed the indictment, is unanimously reversed, on the law, defendant’s motion is denied, the indictment and jury verdict is reinstated, and the matter is remanded for sentence.
Hence, the judgment is unanimously reversed, on the law; defendant’s motion is denied, the indictment and jury verdict is reinstated, and the matter is remanded for sentence.
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