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Town Justice David Dellehunt

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Mullady, charged with, among other things, criminal mischief, was arraigned and appointed a public defender. After numerous adjournments, prosecutors informed the court they declined to prosecute the matter. Mullady’s counsel orally moved for dismissal on grounds prosecutors declined to prosecute but the motion was denied as the court indicated the only way to dispose of a case already filed in a court was by plea, after trial, or by bringing a motion upon a ground enumerated in CPL §170.30. Defense now filed a written motion for dismissal on same grounds and also in the interest of justice. The court lacked authority to dismiss on grounds prosecutors declined to prosecute noting such dismissal did not cause jeopardy to attach, leaving Mullady vulnerable to “future whims” of prosecutors to later resurrect charges. Yet, it found Mullady established existence of compelling factors warranting dismissal of the charges under the interests of justice standard–as full restitution was paid and the most serious offense was one against property. The court concluded Mullady met her burden to set forth compelling factors under §170.40 to warrant dismissal, ruling the present facts “cry out for fundamental justice beyond the confines of conventional considerations.”