Hennessy v. Gorman

87 A.D.2d 29, 450 N.Y.S.2d 638, 1982 N.Y. App. Div. LEXIS 16101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1982
• Status: Published

Opinions

OPINION OF THE COURT

Per Curiam.

Defendants were indicted by the Grand Jury for the crimes of grand larceny in the third degree and petit larceny. The felony charges of grand larceny in the third degree were dismissed for insufficiency of the evidence presented to the Grand Jury leaving undisposed the misdemeanor charges of petit larceny. On a later appearance, the Supreme Court, with the acquiescence of the District Attorney, granted each defendant an adjournment in contemplation of dismissal (ACD). We hold that an ACD is not available to dismiss charges contained in an indictment. CPL 170.55 (subd 1) clearly provides that “Upon or after arraignment * * * upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint * * * the court may * * * order that the action be ‘adjourned in contemplation of dismissal’ ”. We should read the statute as it is written and not insert the additional word “indictment”. Were we to apply ACD’s to indictments, we would circumvent the purpose of CPL 210.40. CPL 170.55 governing ACD’s does not require the courts to give any reasons for dismissal, whereas CPL 210.40 authorizing dismissal of indictments in the interest of justice requires the court not only to state its reasons, but also to. consider 10 specified factors before granting an order of dismissal. Confidence of the public in the criminal justice system is not enhanced when courts set aside the honest efforts of Grand Jurors without stating the reasons therefor.

Accordingly, the petition should be granted and the order of the respondent vacated and the matter remitted to Supreme Court, Onondaga County, for further proceedings on the indictment.