NEW YORK’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE (CLAYTON MOTIONS)

May 29, 2008 by Peter Howard Tilem

Experienced New York Criminal Attorney’s who are familiar with the New York Criminal Procedure Law are familiar with CPL § 210.40 which authorizes Judges to dismiss cases in the “Interest of Justice” and the 10 factors that Judges need consider when deciding whether to grant such a motion. The Motion to Dismiss in the Interest of Justice is also known to many New York lawyers as a “Clayton” motion after the 1973 case that originally discussed the parameters of this type of motion. At Tilem & Campbell, our criminal lawyers have successfully used Clayton Motions to resolve difficult cases and protect the interests of our clients.

Our experienced criminal attorney’s have also used the factor delineated in CPL §210.40 to resolve serious criminal cases by addressing the factors in letters to prosecutors. By using the Clayton factors to show a prosecutor that a Judge might dismiss the case, we are sometimes able to convince a prosecutor to offer an ACD or a Violation when they had previously refused to do so. This strategy has been used by lawyers at this firm to resolve cases such as Assault, Insurance Fraud and Gun Possession.

Recently Judge Rory Bellantoni, of the Westchester County Court in White Plains, after an analysis of all of the factors delineated in CPL §210.40 dismissed a felony Sexual Abuse case in the interest of justice. In that case, prosecutors were offering an ACD or a dismissal of the charges and then suddenly withdrew the offer. A number of other factors also supported the dismissal. The case demonstrates that even very serious felony cases can be dismissed under Clayton and not only less serious misdemeanors.

No two cases are alike and some cases even though serious on their face warrant further analysis. The 10 factors listed in CPL §210.40 are generally a great place to start in evaluating the value of a criminal charge. The bottom line is get an experienced criminal defense attorney involved early in the case to get the maximum benefit and to have the most options.

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