Mic Drop for Justice: Motion Alleging Misconduct Against Prosecution and Seeking Dismissal in Interest of Justice Leads to Dismissal within 24 Hours of Service

If fighting City Hall is difficult, battling the District Attorney’s Office is arguably harder when your arguments and evidence falls on deaf ears and your client’s exposure is not measured in money but a permanent criminal record and the duration of incarceration. Fortunately, however, when your client is left standing and walks away exonerated, there are few greater victories worthy of battle scars. For a recent Saland Law PC client arrested for Second Degree Burglary and other crimes, and subsequently charged with Third Degree Assault and Criminal Obstruction of Breathing or Blood Circulation, leaving the justice system unscathed other than by a undeserved and miserable experience could not be more rewarding. The following is lesson of how prosecutorial inexperience coupled with expansive power can result in potentially grave miscarriages of justice. Simply, no matter the allegation, it is incumbent upon any criminal defense attorney to question and challenge law enforcement to protect your rights.

The NYPD arrested our client after his wife called the police alleging he broke into her apartment and stole her computer, passport and cash while their young daughter was home with the babysitter. After being charged with Burglary in the Second Degree, Grand Larceny, Endangering the Welfare of a Child and related offenses, our client retained Saland Law PC and explained that his wife fabricated the claims, had repeatedly threatened him with arrest, and taunted him with deportation because their relationship had soured. A fairly easy investigation revealed that not only was our client the lessor of the apartment, had a key to the apartment, and paid rent for the apartment, but the “stolen” computer was his business computer. Upon providing proof of the same to the assigned prosecutor, the Assistant District Attorney held on to the complainant’s allegation that our client stole cash, a passport and still had no right to enter. In response, Saland Law reiterated her motive and pointed to the blatant misrepresentations as to ownership of the computer and access to the apartment that was characteristic of the entire charade.

Even more compelling, our criminal lawyers provided direct evidence that the complainant, a convicted felon for Grand Larceny stemming from a multi-dozen count indictment, had spray painted and damaged our client’s property, cut up our client’s clothing, threatened to kill our client, and falsely called 911. An audio recording, video and pictures were provided as corroboration. Equally important, we offered to proffer our client no less than five times so the ADA could assess his credibility and learn more of the back story. Unfortunately, the People had no interest in speaking with our client even after explaining that the complainant approached our client at a restaurant and called 911 and the assigned detective refused to make an arrest due to the disingenuous claim. Finally, after months of providing corroboration that the complainant stole from the defendant’s business, created a GoFundMe.Com page to play on her sympathy as a “victim” of domestic violence netting her thousands of dollars, actively disparaged our client to his business associates, and sent texts where she told our client’s parents that she would have him arrested and deported, destroy his business, and admitted to violent behavior because he was not a loving husband, the DA’s Office agreed to dismiss the charges. Sadly, however, the end of the case this was not…

Upon learning that our client’s case was being dismissed, the complainant convinced the District Attorney’s Office to charge our client with an earlier alleged misdemeanor Assault and Criminal Obstruction of Breathing where the Domestic Incident Report (DIR) was overwhelmingly contrary to the new version of the story provided to prosecutors. The DIR reflected with specificity that complainant stated within roughly an hour of the claimed incident that our client did not strike her, did not strangle her and did not cause her any pain. Moreover, the responding police observed no injuries and did not pursue an arrest as no no crime was committed. Simply, our client advised, and we explained, the incident never happened at all and was another example of false reporting. Despite this, the People stated they would supersede the same felony complaint they were also going do dismiss (*head scratch*). This planned superseding, of course, created an entirely new issue (and one that is a bit “inside baseball” for those of us who are not criminal lawyers.)…

Upon advising Saland Law of the superseding misdemeanor information, we explained that because there was no joinder of charges, such a complaint would be improper. Period. To circumvent the issue, the prosecution first reduced the felony complaint leaving only misdemeanor charges from the first arrest, then filed and served a superseding misdemeanor information with the new charges and those remaining from the first arrest. Wait for it…the District Attorney then dismissed all the language and charges from the first case in the superseding complaint thereby leaving only the new charges. Of significant concern, prosecutors admitted that they could not prove the first case beyond a reasonable doubt prior to the court date and would dismiss the same in court. When in court, they only dismissed the felony charges but kept the misdemeanor charges “alive” on the same complaint to make sure there would be at least one charge on the new superseding accusatory instrument because such a charge was needed for legal and procedural purposes. Upon filing this new accusatory they then dismissed the remaining earlier offenses from the felony complaint drafted into the new information leaving solely the new set of  misdemeanor offenses. Arguably, from technical perspective this was now a technically viable accusatory but that is not the spirit of the CPL. The icing on the cake? The prosecution then moved for an Adjournment in Contemplation of Dismissal which would have resulted in a dismissal after one year. On our advice, the client rejected the “offer.”

Shortly thereafter, Saland Law PC served the People by email with a procedural motion to dismiss and a Clayton motion to dismiss in the interest of justice. Among many points, we argued that the prosecution violated the rules of professional conduct and intentionally circumvented the law when they knew were dismissing and did dismiss the original complaint but drafted those same crimes on the second instrument solely for procedural reasons before dismissing those same offenses seconds later. They did this, we argued, because they lacked the courage to tell the complainant in a Domestic Violence case that she was dishonest and using the court system as a sword and, equally concerning, they lacked the chutzpah to re-arrest a man they likely believed was innocent as they should have done if they followed proper criminal procedure. Moreover, it was inconceivable that prosecutors would proceed while ignoring our repeated offers to proffer our client and overwhelming evidence we did and were willing to share that confirmed his innocence. Way too much to include here, upon drafting our motion we provided the People with a courtesy copy prior to filing the same with court. After all, the record would be devastating, the judge in the court part where the superseding information was filed seemed to agree with our position, and we openly questioned whether such behavior was the norm of this District Attorney’s Office.

About an hour or two later, and prior to filing, a supervisor called….

Within 24 hours the People advanced and dismissed the case…

An unnecessary “mic drop” for justice.

To learn more about any of the crimes addressed above, review the links or go to New-York-Lawyers.org. Founded by two former Manhattan prosecutors, our attorneys represent clients throughout New York City and the Hudson Valley.

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