People v. Sosenko

Appellate Division of the Supreme Court of New York

People v. Sosenko

210 A.D.2d 581, 620 N.Y.S.2d 17, 1994 N.Y. App. Div. LEXIS 11835

Appellate Division of the Supreme Court of the State of New York·Decided December 1, 1994·Published·Cited by 3 cases

Opinion

Per Curiam.

Appeal from an order of the County Court of Tioga County (Kepner, Jr., J.), entered June 1, 1993, which granted defendant’s motion to dismiss the indictment.

Defendant was tried twice on the charge of manslaughter in the second degree stemming from an altercation between members of two groups of patrons at a tavern in the Town of Owego, Tioga County, on March 7, 1992. Defendant was accused of striking Keith Baron in the face, causing him to fall and hit his head against a hard object which resulted in his death. The first trial resulted in a mistrial due to the illness of a deliberating juror at a point when it appeared that the jury was leaning 10 to 2 in favor of acquittal. The second trial ended in a hung jury. Defendant moved to dismiss the indictment in furtherance of justice pursuant to CPL 210.40. After conducting a Clayton hearing (see, People v Clayton, 41 AD2d 204), County Court granted the motion and dismissed the indictment. The People appeal.

In its written decision determining the motion, County Court carefully considered all the factors enumerated in CPL 210.40 and set forth reasons supported by the record which formed a basis for its exercise of discretion. We therefore find that County Court did not abuse its discretion as a matter of law. Furthermore, based upon our review of the facts and the attendant circumstances of decedent’s tragic death, we cannot say that County Court improvidently exercised its discretion (see, People v Henriquez, 68 NY2d 679; People v Rickert, 58 NY2d 122). Accordingly, we affirm County Court’s dismissal of the indictment in furtherance of justice.

Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the order is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Appeal from an order of the County Court of Tioga County (Kepner, Jr., J.), entered June 1, 1993, which granted defendant’s motion to dismiss the indictment.

Defendant was tried twice on the charge of manslaughter in the second degree stemming from an altercation between members of two groups of patrons at a tavern in the Town of Owego, Tioga County, on March 7, 1992. Defendant was accused of striking Keith Baron in the face, causing him to fall and hit his head against a hard object which resulted in his death. The first trial resulted in a mistrial due to the illness of a deliberating juror at a point when it appeared that the jury was leaning 10 to 2 in favor of acquittal. The second trial ended in a hung jury. Defendant moved to dismiss the indictment in furtherance of justice pursuant to CPL 210.40. After conducting a Clayton hearing (see, People v Clayton, 41 AD2d 204), County Court granted the motion and dismissed the indictment. The People appeal.

In its written decision determining the motion, County Court carefully considered all the factors enumerated in CPL 210.40 and set forth reasons supported by the record which formed a basis for its exercise of discretion. We therefore find that County Court did not abuse its discretion as a matter of law. Furthermore, based upon our review of the facts and the attendant circumstances of decedent’s tragic death, we cannot say that County Court improvidently exercised its discretion (see, People v Henriquez, 68 NY2d 679; People v Rickert, 58 NY2d 122). Accordingly, we affirm County Court’s dismissal of the indictment in furtherance of justice.

Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the order is affirmed.

People v. Sosenko, 210 A.D.2d 581, 620 N.Y.S.2d 17, 1994 N.Y. App. Div. LEXIS 11835 (N.Y. Ct. App. 1994).

Pincite

210 A.D.2d 581 (People v. Sosenko) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related