Section 170.40 Motion to dismiss information, simplified traffic information, prosecutor`s information or misdemeanor complaint; in furtherance of justice

    1.  An information, a simplified traffic information, a prosecutor`s information or a misdemeanor complaint, or any count thereof, may be dismissed in the interest of justice . . . when . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.  In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:
    (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 judgment of conviction would serve no useful purpose.
    2.   An order dismissing an accusatory instrument specified in subdivision one in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant.  Upon issuing such an order, the court must set forth its reasons therefor upon the record.
 

Section 210.40  Motion to dismiss indictment; in furtherance of justice

    1.  An indictment or any count thereof may be dismissed in furtherance of justice . . . when . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.  In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:
   (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 upon the confidence of the public in the criminal justice system;
   (h)  the impact of a dismissal on the safety or welfare of the community;
   (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 judgment of conviction would serve no useful purpose.
   2.  In addition to the grounds specified in subdivision one of this section, a count alleging enterprise corruption in violation of  article four hundred sixty of the penal law may be dismissed in the interest of justice where prosecution of that count is inconsistent with the stated legislative findings in said article. Upon a motion pursuant to this section, the court must inspect the evidence before the grand jury and such other evidence or information as it may deem proper.
   3.  An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself  as well as upon that of the defendant.  Upon issuing such an order, the court must set forth its reasons therefor upon the record.