Judge William Carter
Donnaruma was arraigned on disorderly conduct and resisting arrest charges, and moved for omnibus relief. The Albany County district attorney declined to prosecute the charges, noting it would not participate in motion practice or future proceedings related to them. Donnaruma moved to dismiss the accusatory instruments on these grounds claiming as the D.A. stated he was not going forward with the prosecution, the court had no authority aside from dismissal. The court disagreed, stating as the D.A. began the criminal prosecution, invoking the court’s jurisdiction upon the filing of the information, he may not merely walk away from the case. It stated as the D.A. exercised his discretion to prosecute the case through its initial stages, both the prosecution and Donnaruma were required to follow the procedures set forth in Criminal Procedure Law §§170.30 and/or 170.40(2). The court also noted the ground for dismissal, that the D.A. declined to further prosecute the action, was not a legally cognizable ground for dismissal, ruling the Court of Appeals in People v. Douglas found that “failure to prosecute” was not listed in §170.0 as a permissible ground for dismissal. Thus, Donnaruma’s motion was denied.
