Cite as: The People v. Deirdre Myers, 2010BX04905, NYLJ 1202586272168, at *1 (Crim., BX, Decided January 24, 2013)

Judge Linda Poust Lopez

Decided: January 24, 2013

 

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Defendant Deirdre Myers was arrested on or about July 16, 2010 and charged with Petit Larceny (PL §155.25) and Criminal Possession of Stolen Property (PL §165.40). The defendant now moves for dismissal of the charges pursuant to C.P.L. §30.30 and in the interests of justice. This court has reviewed defendant's motion, the People's response, the complaint and court file. The motion to dismiss pursuant to C.P.L. §30.30 is denied, but, for the reasons stated below, the motion to dismiss in the interests of justice is granted.

The New York City Criminal Courts have seen their fair share of "lucky bag" type cases. In these situations, police officers leave a bag in a location, such as in a subway car or on a street corner, with its valuable contents conspicuously visible. When a hapless individual takes the bag, along with the cash or a smart phone that is hanging out of it, the police move in and arrest.

The case at hand goes beyond the more traditional "lucky bag" operation. In this case, the police acted out an elaborate scenario where an undercover pretended to be the driver of a car, and then other officers pretended to arrest him. When the officers had the "suspect" in custody and left with him, they left his car behind, unlocked, with some property exposed in plain view inside the car. This property was, namely, a dollar bill wrapped around some cut up pieces of newspaper-to make it look like a large bundle of cash, as well as a metrocard and a Visa bank card. Defendant and her juvenile daughter are accused of then entering the car and taking the property.

Defendant was arrested, apparently at gunpoint, on and charged with Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree. The case has been adjourned endlessly during the last two and a half years, and the People have never made an offer, requiring instead that if defendant wanted to dispose of the case she would have to plead to the charge1. Defendant is a forty-one year old woman with no prior arrests, who worked for the City in various capacities until she was laid off. She is now caring for an elderly grandmother and several children while she looks for work. She apparently has not been arrested in the 2 1/2 years since this arrest.

 

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In considering a motion to dismiss in the interest of justice the court must weigh collectively and individually:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgement of conviction would serve no useful purpose.

CPL §170.40(1); People v. Clayton, 41 A.D.2d 204 (2nd Dept 1973).

The court need not address all of the factors, nor engage in a "point-by-point catechistic" discussion. People v. Rickert, 58 NY2d 122, 128 (1983). But, in granting a motion for dismissal in the interest of justice, the facts and circumstances must be of such a nature that denial of the relief would be "an abuse of discretion as to shock the conscience of the court". People v. Stern, 83 Misc. 2d 935, 936 (New York County Criminal Court, 1975).

In this case, the defendant is a hard-working, family-oriented woman with an otherwise unblemished record. The harm caused by this offense is non-existent; this was a fabricated crime, and no one was harmed by it. There is thus also no "victim" to consider regarding his or her attitude about a dismissal here. The evidence of guilt here is not overwhelming, as the defense contends that Ms. Meyers intended to safeguard the property for the "arrestee," and the People do not seem to have any statements from defendant, or anything else to counteract that perfectly reasonable defense. This is especially so when defendant was arrested almost immediately. Had some time elapsed, the police would have been able to observe whether defendant left a note on the car to alert the owner to contact her for his property, or whether she instead took it with her or tried to use it. A dismissal here will have no negative impact on the safety or welfare of the community; defendant has never been charged with doing anything like this before, in her roughly 40 years, and is quite unlikely to ever again. There is no point in imposing a sentence on defendant here. Indeed, a conviction here, even for a violation, would impede her ability to continue to be a productive member of society, as it would make it more difficult for her to find employment.

 

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All of the above factors militate towards a dismissal in the interests of justice. Perhaps the most compelling factor, however, is the the impact of a dismissal upon the confidence of the public in the criminal justice system. This is a county where distrust of law enforcement is high. The populace feel, quite pervasively, and much more than in the other counties of this City, that law enforcement do not prosecute serious, violent crimes aggressively enough, and do not protect their communities as they should. They also feel, conversely, that they and their children are treated unfairly by law enforcement, and that stops are made, and arrests effected, that perhaps should not be. So to deny dismissal in this case, where, instead of using their time to fight the significant amount of serious crime in the county, the police went through elaborate lengths, involving the use of a car and several officers, to contrive this scenario to lure, bait and trap a law-abiding person into taking property, and then to draw their guns on a crowded public street to arrest her, and then to require her to come back to court for almost three years to fight the charges2 would greatly damage the confidence and trust of the public in the fairness and effectiveness of the criminal justice system, and rightly so.

Dismissal in the interest of justice has been granted by other courts for less contrived situations. People v. Gonzalez, 33 Misc.3d 1238A (Crim. Ct. NY County 2011); People v. Arroyo, 12 Misc. 3d 1003 (Crim Ct. Kings Cty 2006) (both "lucky bag" cases).

Accordingly, the charges here are dismissed in the interests of justice.

Defendant's C.P.L. §30.30 argument has been considered and is without merit.

This constitutes the decision and order of the court.

1. During an off-the-record bench conference after the filing of the instant motion, the People did, for the first time, offer Disorderly Conduct with a Conditional Discharge.

2. This decision is not based on any considerations of speedy trial or the prosecution's declination to make a non-criminal offer until 2 1/2 years into the case. Rather, these things are mentioned as exacerbating the public's image of how an arrest which was unfair to begin with, was treated in the courts.