People v. Clifford

204 N.Y.S.3d 749

The PEOPLE of the State of New York,

v.Jasmine CLIFFORD, Nadayza Barkley, R.V., and J.O., Defendants.

Supreme Court, New York County.

Decided on January 30, 2024

Prosecutor: Alvin L. Bragg, Jr., District Attorney of New York County, Taylor Holland, Assistant District Attorney and Catherine McCaw, Assistant District Attorney, One Hogan Place, New York, NY 10013, (212) 335-9000

Defense Counsel for Jasmine Clifford, Nicholas Dayan, Esq., 80-02 Kew Gardens Rd, Suite 902, New York, NY 11415, 718-268-9400

Defense Counsel for Nadayza Barkley, Glenn F. Hardy, Esq., 1619 3rd Ave., Ste. 9K, New York, NY 10128, (516) 248-4041

Defense Counsel for R.V., Law Offices of Harlan Greenberg, P.C., Harlan Greenberg, Esq., 20 Vesey Street, Suite 400, New York, NY 10007, (212) 964-0503

Defense Counsel for J.O., Grizopoulos & Portz, P.C., Gregory Grizopoulos, Esq. 170 Old Country Road, Suite 502, Mineola, New York 11501, (516) 492-8220

Brendan T. Lantry, J.

Defendants Jasmine Clifford ("Clifford"), Nadayza Barkley ("Barkley"), R.V. ("R.V."), and J.O. ("J.O.") (hereinafter, collectively, the "Defendants"), by and through their attorneys, hereby move this Court for an Order (1) dismissing the accusatory instrument in the interest and furtherance of justice pursuant to CPL § 210.40 and 170.40 and People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 [2d Dept., 1973] and (2) for such other and further relief as this Court may deem just, proper and equitable under the circumstances.¹

In response to the Defendants’ motions, the People filed an Affirmation in Response in which they collectively respond to each of the Defendant’s motions. Defendant R.V. filed a Reply Affirmation and the remaining Defendants did not file same. Following the Court’s extensive oral arguments held on November 30, 2023, the People submitted to the Court a letter with exhibits as well as a copy of the grand jury transcript on December 14, 2023.

Based upon the evidence and papers submitted by the parties, the Court hereby grants the motions submitted by Defendants R.V. and J.O. and denies the motions submitted by Defendants Clifford and Barkley, as set forth below.

Factual Allegations and Procedural History

This matter arises out of the falsification of COVID-19 vaccine cards and the purchase of same. Clifford is alleged to have profited tens of thousands of dollars through her sale of several hundred falsified COVID-19 vaccine cards to various buyers throughout the country. The People allege that in furtherance of this scheme, Clifford worked with Barkley to enter false information into the New York State Immunization Information System ("NYSIIS") database while using the account of a medical clinic in Patchogue, New York where Barkley worked.

The Office of the New York Country District Attorney, led by current District Attorney Alvin Bragg (hereinafter the "People"), investigated and found hundreds of individuals from various parts of the country who purchased illegitimate COVID-19 vaccination cards. From over two hundred individuals who allegedly purchased the falsified COVID-19 vaccination cards, the People cherry-picked² sixteen (16) of them for felony prosecution.³ Fourteen (14) of the buyers pled guilty to misdemeanor Criminal Possession of a Forged Instrument in the Third Degree (Penal Law § 170.20), an A misdemeanor, as a lesser included of the sole count of the indictment against those individuals, Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25), a D felony. J.O. and R.V. are the last two remaining defendants who the People allege purchased fake COVID-19 vaccine cards from Clifford.

Discussion

As stated above, the Defendants currently move to dismiss this matter under CPL § 210.40 in the interests of justice. Pursuant to the terms of CPL § 210.40, the Court may grant a Defendant’s motion to dismiss an indictment in the furtherance of justice. Specifically, CPL § 210.40(1) provides:

An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph of (i) of subdivi-sion one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, 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.

CPL § 210.40(1) further provides that when determining whether such compelling factor, consideration, or circumstance exists, the Court "must, to the extent applicable, examine and consider, individually and collectively" the following factors:

(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. CPL § 210.40(1).

The Appellate Division, First Department has held that while dismissal pursuant to CPL § 210.40(1) is committed to the trial court’s discretion, such power to dismiss "is not absolute" and "it should be ‘exercised sparingly’ and only in that ‘rare’ and ‘unusual’ case where ‘it cried out for fundamental justice beyond the confines of conventional considerations.’ " People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 [1st Dept. 1992]. See People v. Williams, 145 A.D.3d 100, 107-08, 40 N.Y.S.3d 94 [1st Dept. 2016] (quoting People v. Harmon); People v. Hadnott, 74 Misc.3d 509, 510-11, 160 N.Y.S.3d 851 [Sup. Ct. 2022].

In People v. Williams, the First Department noted that:

When reviewing the circumstances in a case such as this, it is the public interests that must be largely considered (see People v. Andrew, 78 A.D.2d 683, 432 N.Y.S.2d 252 [2nd Dept. 1980]). An exemplary background, employment status, or lack of prior contact with the criminal justice system are insufficient to justify dismissal of the criminal charges against a defendant (see People v. Kelley, 141 A.D.2d 764, 765, 529 N.Y.S.2d 855 [2nd Dept. 1988]). Nor are an individual’s business success or respectable standing in the community sufficient to warrant a finding of dismissal in the interests of justice (see People v. Madsen, 11 Misc.3d 1067 [A], 2006 WL 734352 [Crim Ct., Kings County 2006, Sciarrino J]).

Regarding the factors to be weighed in evaluating whether there exists a compelling basis for dismissal, such an analysis provides a means of limiting the discretion of the trial courts while guaranteeing a standard for appellate review (People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377 [1976]). It is significant to note, however, that whilea court need not engage in a discussion of or explicitly address every factor, it must consider the "real and compelling" reasons to warrant dismissal (People v. Rickert, 58 N.Y.2d 122, 128, 459 N.Y.S.2d 734, 446 N.E.2d 419 [1983]). Indeed, whether assessed individually or collectively, a court must be convinced they present a compelling circumstance so as to constitute the " ‘rare’ and unusual’ " case that warrants dismissal in the interest of justice (People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 [1st Dept. 1992]; People v. Reyes, 174 A.D.2d 87, 89, 579 N.Y.S.2d 34 [1st Dept. 1992]; People v. Insignares, 109 A.D.2d 221, 234, 491 N.Y.S.2d 166 [1st Dept.], lv denied 65 N.Y.2d 928, 493 N.Y.S.2d 1047, 483 N.E.2d 139 [1985]; Clayton, 41 A.D.2d at 208, 342 N.Y.S.2d 106. People v. Williams, 42 Misc.3d 1237(A), 2014 WL 1057154 [Sup. Ct. 2014]

[1–4] The Court finds that considering the factors set forth under CPL § 210.40, the instant case against Defendants J.O. and R.V. constitutes that "rare and unusual case" that cries out for fundamental justice beyond the confines of conventional considerations and, therefore, dismissal is warranted. However, the Court does not make such a finding as to Defendants Clifford and Barkley, as the factors set forth in CPL § 210.40 weigh against dismissal.

[5] The People submit that the motions are untimely pursuant to CPL § 255.20 and People v. Figueroa, 203 A.D.2d 72, 610 N.Y.S.2d 25 [1st Dept. 1994], which provides that a motion to dismiss in the interest of justice must be made within 45 days after an arraignment. However, the express terms of CPL § 255.20 provides that said motion must be made "within forty-five days after an arraignment … or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." As this Court previously granted the application of each of the defendants for leave to file the instant motions, the motions are not untimely.

However, this Court is astonished to see the People make such an argument when the People routinely — nearly daily — move to dismiss significantly more serious counts or entire indictments in the interests of justice simply to negate the consequences of New York’s predicate felon sentencing statutes or to avoid immigration consequences. These motions submitted by the People are made months or even years after the 45-day period has expired to dismiss counts of indictments such as sexual assaults, drug sales, robbery, burglary, and other violent and non-violent serious felony offenses. To say now that...