DECISION AND ORDER

The defendant, charged with the criminal possession of a controlled substance in the seventh degree, now moves for dismissal in the interest of justice.

On February 4, 2002, the defendant was observed on the Mount Vernon East train station platform removing his clothes. Upon investigation by Metropolitan Transportation Authority police officers, a number of "crack pipes" containing residue and two small bags of cocaine were recovered from the defendant's bag. The defendant was thereafter arrested and the misdemeanor charge of criminal possession of a controlled substance in [p. 2]  the seventh degree lodged against him. At the time of his arrest on February 4, 2002, the defendant was subject to an undischarged sentence upon a 1994 conviction and was released on parole in October 2001. The defendant, subsequent to his release, absconded and remained at large until his February 2002 arrest. On April 23, 2002, after a revocation hearing on the absconding charge, the defendant was re-sentenced to nine months incarceration. Following the parol revocation hearing the defendant entered a plea of not guilty to this misdemeanor drug charge and a jury trial was scheduled for June 19, 2002. At a pre-trial conference on June 17, 2002, the defendant moved for dismissal in the interest of justice.

The court entertained the defendant's motion and the arguments made therein, however, sua sponte, dismissed the charge for the following reasons.

A court may grant a dismissal in the interest of justice where, even though there may be no basis for dismissal as a matter of law, upon any ground specified in CPL 170.30. A dismissal under the statute is required as a matter of judicial discretion by the existence of some compelling factor or factors demonstrating [p. 3]  that such conviction would result in injustice. (CPL §  170.40). The practice of dismissing an information in the interests of justice relates back to the common law doctrine of nolle prosequi, which has evolved to vest, solely in the court, "the power in appropriate ... circumstances to allow the letter of the law gracefully and charitably to succumb to the spirit of justice." (People v. Davis, 55 Misc. 2d 656, 659, 286 N.Y.S.2d 396). The circumstances of this case compel the court to engage in a sensitive balancing of the interests of the defendant and the interests of the People. People v. Rickert, 58 N.Y.2d 122, 127, 459 N.Y.S.2d 734, 446 N.E.2d 419 (1983). It is the considered opinion of this Court that it is obliged to determine whether the People's interest in the proper and efficient administration of justice will be realized at a reasonable cost. [n. 1]

1 The circumstances of this particular matter reveal that should there be a jury trial and a return of a guilty verdict the defendant would be subject at most to only sixty days incarceration.

This Court weighs and considers all the above factors especially the nature of the particular offense, the evidence against defendant, and the defendant's history. There is no indication of misconduct by law enforcement officials and no particularized [p. 5]  victim involved. Notwithstanding, the alleged possession of a controlled substance, this Court will rely on the Division of Parole's supervision of the defendant to daunt future misconduct. Furthermore, the decision to dismiss weighs the limited benefit to the community of imposing a short additional sentence on the defendant and the relative high cost of obtaining a conviction.
The defendant is presently serving a nine month sentence pursuant to re-sentencing after his parole revocation hearing on absconding charges. (Parole Revocation Decision Notice, Warrant Number 367360, April, 23, 2002). Should a jury trial proceed and a conviction be obtained on the charges herein, this court could only impose a maximum twelve month sentence. (Penal Law §  70.15). Further, it has been a longstanding policy of this court, in the absence of extenuating circumstances and in accord with the discretion granted it by Penal Law §  70.25, to order that sentences run concurrent with any undischarged term of imprisonment that a defendant may be subject to at the time of sentencing. (See Midgley v. Smith, 63 A.D.2d 223, 226, 1978, 407 N.Y.S.2d 283). [p. 6]  The court here finds no such extenuating circumstances in this case that would cause it to deviate from such a policy. As a result it is most probable that a sentence upon conviction, would have been ordered served concurrent with defendant's undischarged nine month sentence.

Additionally, since defendant was taken into custody on February 4, 2002, at the time of sentencing in August, 2002, he would have a credit of approximately six months served, thereby reducing the court's sentence proportionately to six months. (Penal Law §  70.30 [3](a)). Also, defendant would have been entitled to have his sentence further reduced by one third, or in this case by four months, for "good behavior." (Penal Law §  70.30 [4](b)). Therefore, simply by operation of the Penal Law, the maximum available twelve month sentence would be reduced by six months as a result of time served and then further reduced by four months for good behavior time. Consequently, after a jury trial the defendant would be exposed to a deminimus total term of incarceration of sixty days.

In a time of diminishing public resources in our state this Court is not prepared to [p. 7]  appropriate extensive resources to a jury trial that would potentially ensue little or no benefit to the People. This Court is not unaware of the fact that in order to proceed with the trial a courtroom, Judge, jurors, court officers, court reporters and witnesses must be mobilized and "used" for approximately three full days, Further, the defendant must be transported back and forth and the County will be forced to incur the cost of his counsel. This Court is mindful of the purpose of the Penal Code to "insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection," a purpose that would be strained under these circumstances. (NY CLS Penal §  1.05).

As such, the court hereby dismisses the misdemeanor information lodged against this defendant in the interest of justice. Justice should flow not only to the defendant but also to the people.