2011-567 OR CR. PEOPLE, ap. v. WALTER MCATEER, res — Appeal from an order of the Justice Court of the Town of Blooming Grove, Orange County (Christopher J. Turpin, J.), dated January 31, 2011. The order granted defendant's motion to dismiss the accusatory instruments in the furtherance of justice.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instruments in the furtherance of justice is denied, the accusatory instruments are reinstated and the matter is remitted to the Justice Court for all further proceedings.

Defendant was charged with driving while intoxicated (Vehicle and Traffic Law §1192 [3]) and failure to keep right (Vehicle and Traffic Law §1120[a]). It was alleged that defendant had been involved in an automobile accident and that he had admitted to the police at the scene that he had been drinking; that the police had observed that defendant had appeared intoxicated; and that, after field sobriety tests had been administered, defendant had been arrested and charged with the aforementioned offenses. Defendant, who was 71 years old at the time of the incident, moved to dismiss the accusatory instruments in the interest of justice (CPL 170.30 [1] [g]; 170.40). Defendant's motion papers described defendant as "an elderly man riddled with health problems [who had been] involved in an automobile accident" and noted that no one had sustained serious injuries in the accident. Defendant further maintained that his medical records would cast reasonable doubt on whether the automobile accident was the result of intoxication rather than a recent stroke, heart trouble, diabetes, Alzheimer's disease, eye surgery and multiple medications he had been taking. The People opposed the motion. The Justice Court granted defendant's motion.

The factors to be considered by a court in determining whether a dismissal in the interest of justice is warranted are set forth in paragraphs (a) through (j) of section 170.40 (1) of the CPL. In the case at bar, paragraph (c), "the evidence of guilt, whether admissible or inadmissible at trial," and paragraph (d), "the history, character and condition of the defendant," require particular consideration. The burden of proof is on the People to prove a defendant's guilt beyond a reasonable doubt and not on the defendant to introduce evidence of his innocence. Thus, in rendering a decision on a motion to dismiss in the interest of justice, a court should consider the evidence available to the People at trial and determine whether it is sufficient as a matter of law to prove each and every element of the offense charged. The fact that a defendant has a legitimate defense that can weaken the People's case in no way lessens the quantum of proof available to the People. The power to dismiss an accusatory instrument in the interest of justice should be used sparingly and only in rare and unusual cases that cry out for "fundamental justice beyond the confines of conventional considerations" (People v. Harmon, 181 AD2d 34, 36 [1992] [internal citations and quotation marks omitted]). Here, the circumstances do not warrant such a dismissal of the accusatory instruments. Defendant's assertions simply raise an issue to be presented to the trier of fact and are not so compelling as to warrant the court's circumventing the prosecutorial discretion of the People (see People v. McConnell, 11 Misc 3d 57 [App Term, 9th & 10th Jud Dists 2006]; see also People v. Litman, 99 AD2d 573 [1984]).

In view of the foregoing, the order is reversed, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated and the matter is remitted to the Justice Court for all further proceedings.

LaCava, J.P., Nicolai and LaSalle, JJ., concur.