
    The People of the State of New York, Appellant, v Andrew R. Tyler, Respondent.
    Argued October 17, 1978;
    decided December 20, 1978
    
      POINTS OF COUNSEL
    
      John F. Keenan, Deputy Attorney-General (Thomas A. Duffy, Jr., and Mark M. Baker of counsel), for appellant.
    I. The evidence presented to the Grand Jury was legally sufficient to establish, prima facie, that respondent had committed the crime of issuing a false certificate. (People v Bel Air Equip. Corp., 39 NY2d 48; People v Gottlieb, 36 NY2d 629; People v Sansanese, 17 NY2d 302; People v Eckert, 2 NY2d 126; People v Von Werne, 41 NY2d 584; People v Benzinger, 36 NY2d 29; People v Lagana, 36 NY2d 71; People v Sabella, 35 NY2d 158; People v Brown, 40 NY2d 381; People v Bonifacio, 190 NY 150.) II. The second count of the indictment, accusing respondent of official misconduct was supported by sufficient evidence and was properly pleaded.
    
      Milton S. Gould, Saul S. Streit and Richard F. Czaja for respondent.
    I. The evidence presented to the Grand Jury with regard to count one of the indictment was insufficient as a matter of law. (People v Eckert, 2 NY2d 126; People v Miller, 54 AD2d 742; People v Von Werne, 41 NY2d 584; People v Sabella, 35 NY2d 158; People v Fellman, 35 NY2d 853; People v Brown, 40 NY2d 381, 433 US 913; People v Bonifacio, 190 NY 150; Palmer v Van Santvoord, 153 NY 612; People v Stevens, 109 NY 159; Matter of Rogers v Leff, 45 AD2d 630, 38 NY2d 903; Matter of Gold v Shapiro, 62 AD2d 62.) II. The evidence presented to the Grand Jury with regard to count two of the indictment was insufficient as a matter of law. (People v Hattemer, 4 AD2d 674, 4 NY2d 837; Matter of American Civ. Liberties Union v McAdoo, 229 App Div 511; Matter of Barnard, 151 App Div 580.) III. The indictment could properly have been dismissed on additional grounds. (Mount Sinai Hosp. v Davis, 8 AD2d 361; People v Doyle, 304 NY 120; People v Lobel, 298 NY 243.)
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in an indictment with the crimes of issuing a false certificate (Penal Law, § 175.40) and official misconduct (Penal Law, § 195.00). In a joint decision and order, Trial Term listed five issues presented for determination, one of which was whether the interests of justice required dismissal of the indictment. It found the evidence of felonious intent presented to the Grand Jury insufficient to sustain the indictment. Dispositive as this ground was, that court nonetheless spoke to defendant’s request for a dismissal in the interest of justice. In the body of its rather lengthy writing, Trial Term found that "[tjhese interest-of-justice considerations by themselves, of course, would obviously not provide sufficient basis for dismissal of this indictment. Coupled with the evidentiary considerations discussed above, however, they do contribute to the Court’s ultimate judgment in this matter.” At the end of its decision-order, under a heading entitled "Conclusion”, the court directed that "for the various legal reasons given, and in the interest of justice, the indictment herein is hereby dismissed.” The Appellate Division unanimously affirmed this order.

Read as a whole, the decision-order of Trial Term unequivocally dismissed the instant indictment in the interest of justice. The court’s discussion in the body of the decision, rather than indicating that the interest-of-justice ground was not considered sufficient, merely reveals the reasoning behind this discretionary dismissal. Various interest-of-justice considerations, together with the dubious nature of the Special Prosecutor’s case, prompted the court to exercise its discretion and dismiss in the interest of justice. Nothing prohibited the court from basing such a dismissal in part upon interest-of-justice factors and in part upon the weakness of the case on the merits (see CPL 210.40). Any doubt as to whether Trial Term dismissed in the interest of justice is resolved by reference to the decretal sentence in the conclusion of its decision-order: "for the various legal reasons given, and in the interest of justice, the indictment herein is hereby dismissed” (emphasis added).

To say that Trial Term did not rely exclusively upon interest-of-justice considerations is not to say that the court did not dismiss in the interest of justice (cf. People v Beige, 41 NY2d 60, 61-62). Indeed, in the determination of a motion for dismissal of an indictment as being in furtherance of justice and in the exercise of a court’s discretion, one of the factors to be considered is the evidence of guilt (see People v Clayton, 41 AD2d 204, 207-208; Supplementary Practice Commentary by Bellacosa, McKinney’s Cons Laws of NY, Book 11A, CPL 210.40, 1977-1978 Supp, pp 131-132). A motion for dismissal under CPL 210.40 is not made in a vacuum, isolated from all else; rather, a ruling thereon is based upon the "totality of all the circumstances in [the] particular case” (see People v Collier, 85 Misc 2d 529, 566, McQuillan, J.).

If we were to reach the merits, we would agree with the analysis of Judge Jones relating thereto and would affirm on that ground as well.

Inasmuch as Trial Term dismissed the indictment in the interest of justice, and the Appellate Division affirmed, however, the order before us is nonreviewable absent an abuse of discretion (People v Belge, 41 NY2d 60, 61-62, supra). Finding none, we are constrained to affirm.

Jones, J.

(concurring). I, too, vote to affirm the order of the Appellate Division which dismissed the two-count indictment against defendant.

I am in entire agreement, however, with the Chief Judge that the unequivocal disclaimer contained in the single paper decision and order at nisi prius precludes our disposition of the present appeal on the ground that the dismissal there was predicated on nonreviewable interests of justice. I am accordingly obliged to reach the merits and in so doing would affirm the determinations of both courts below that each count in the indictment should be dismissed.

With reference to the charge of issuing a false certificate, the applicable provision of section 175.40 of the Penal Law proscribes the issuance by a public servant of an official written instrument with knowledge that it contains a false statement and "with intent to defraud, deceive or injure another person”. The indictment here charged defendant with having issued a bail reduction order directing the release of a prisoner, which order contained the false statement that an application for reduction of bail has been made by William C. Chance, Jr., in behalf of the prisoner. It is not disputed that no application for reduction of bail had been made by William C. Chance, Jr., in behalf of the prisoner.

In addition to the inclusion of a false statement, the statute requires that the official written instrument be issued "with intent to defraud, deceive or injure another person”. It is this latter element for which no evidentiary proof is to be found in this record. There is no identification of any person who was in fact defrauded, deceived or injured; nor is there any proof that defendant intended to defraud, deceive or injure anyone. Both courts below concluded that the false statement had no material bearing on the issuance of the bail release order.

The People’s only contention of substance is the inadequate bootstrap assertion that the requisite intention to defraud, deceive or injure may be circumstantially inferred from the inclusion in the bail reduction order of the false statement — in effect that proof sufficient to establish one element of the crime may be used as the springboard for an inference to sustain another element of the same crime. This may be theoretically true in other instances; it fails here because the conclusion hopefully to be inferred is so attenuated as not to meet the test of legal sufficiency — the guilty inference is neither the only fair and reasonable inference capable of being drawn from the false statement and the circumstances surrounding the issuance of the bail reduction order, nor is such evidence of a character to exclude to a moral certainty every other hypothesis except that of defendant’s intent to defraud, deceive or injure some third person.

The prosecution’s further argument is that inasmuch as the District Attorney had had no opportunity to be heard there was a failure to comply with the provisions of CPL 530.30, and that this noncompliance supports an inference of the requisite criminal intent. As noted by the courts below, however, this theory was developed only after the presentment to the Grand Jury and the return of the indictment. Indeed it appears that it has not been until briefing in our court that this theory has been advanced to save the first count as well as the second.

As to the second count — official misconduct as proscribed by section 195.00 of the Penal Law — in our court the sole basis urged by the prosecution for sustaining this count is that inasmuch as the evidence with regard to count one is sufficient, the same evidence is sufficient to sustain count two. "It was the intent of the legislature that any public servant guilty of the crime of issuing a false certificate would also be guilty of the crime of official misconduct.” It follows that the inadequacy of evidence to sustain the first count is fatal to the second count as well.

I must add that, inasmuch as the proposition of law on which the dissenters would rely with some cogency was not advanced in the courts below or addressed by the parties in our court, I am not prepared to reverse the dismissal of the indictment on that ground.

Accordingly, in the posture in which the appeal comes to us, I am in agreement with both courts below that as a matter of law the evidence submitted to the Grand Jury was not legally sufficient to establish either offense charged. The indictment was therefore properly dismissed.

Chief Judge Breitel

(dissenting). The single paper decision and order of the Extraordinary Special and Trial Term states unequivocally that "[t]hese interest-of-justice considerations by themselves, of course, would obviously not provide sufficient basis for dismissal of this indictment.” Reading the single paper as a whole, as one must, the court did not hold that the indictment could be dismissed in the interest of justice, but only used the interest of justice, whatever that meant, as a makeweight gloss on its conclusions of law. Hence, the decision and order does not oust this court of the power to review as was true in People v Beige (41 NY2d 60, 61-62). Consequently, I would reach the merits straightforwardly and would reverse on the ground that CPL 530.10 authorizes only a defendant to apply for release on bail or recognizance.

Under elementary principles a lawyer retained for that purpose may make the application. The misrepresentation in this case related to the retention of a lawyer for that purpose when that was not the fact. There are strong policy reasons why the release of a defendant must be made on an authorized application, if only because of the danger that accomplices and their principals for reasons inimical to the defendant may wish to "spring” a defendant who may already have "sung” or is anticipated to "sing” for the prosecution (see People v Luciano, 277 NY 348, 355-356, mot for rearg den 278 NY 624, cert den 305 US 620).

The effect of the misstatement in this case, even if it ultimately appeared that it was for the benefit of defendant, was nevertheless to deceive the correction and court officials involved that a properly authorized application had been made to the Justice issuing the order.

Judges Gabrielli, Fuchsberg and Cooke concur in a memorandum; Judge Jones concurs in a separate opinion in which Judge Wachtler concurs; Chief Judge Breitel dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed.  