People v. Wright

278 A.D.2d 820, 719 N.Y.S.2d 411, 2000 N.Y. App. Div. LEXIS 13743

Opinion

Order unanimously reversed on the law, indictment reinstated and matter remitted to Supreme Court for further proceedings on the indictment. Memorandum: The People appeal from an order that dismissed the indictment against defendant in furtherance of justice pursuant to CPL 210.40 (1). We agree with the People that Supreme Court abused its discretion in, sua sponte, dismissing the indictment on that ground. “On this record, it has not been demonstrated that there are sufficient ‘compelling’ factors to warrant dismissal of the indictment (CPL 210.40 [1]; People v Rickert, 58 NY2d 122; People v Clayton, 41 AD2d 204)” (People v Rucker, 144 AD2d 994, lv denied 73 NY2d 926). It is well established that the discretionary power of a court to dismiss an indictment in furtherance of justice is to be “ ‘exercised sparingly’ ” (People v Oster, 258 AD2d 881, quoting People v Bebee, 175 AD2d 250, lv denied 78 NY2d 1126). Here, the court concluded that prosecution of defendant on the indictment would serve no useful purpose because defendant had recently been convicted of robbery in the first degree and sentenced to a lengthy term of incarceration arising out of a prior offense. Upon our review of the record, however, we conclude that “ ‘this case does not present one of those rare instances’ ” in which dismissal in furtherance of justice is warranted (People v Oster, supra, quoting People v Bebee, supra, at 250). Therefore, we reverse the order, reinstate the indictment and remit the matter to Supreme Court for further proceedings on the indictment. (Appeal from Order of Supreme Court, Onondaga County, Brunetti, J. — Dismiss Indictment.) Present— Pigott, Jr., P. J., Pine, Wisner, Scudder and Lawton, JJ.