Kupferman, J. P., and Kassal, J., dissent in a memorandum by Kupferman, J. P., as follows: The defendant was indicted for robbery in the second degree (Penal Law § 160.10 [1]) because, together with three others, he robbed an undercover plainclothes police officer who was posing as a food delivery boy. The acting Justice dismissed the charge against this defendant in the interest of justice, pursuant to CPL 210.40, and the People appeal.
In this theft, no force was used, no weapon referred to or displayed and nothing taken other than the food involved. The codefendants pleaded guilty and, with the consent of the People, were adjudicated youthful offenders and received probationary sentences. However, this defendant, who had passed his nineteenth birthday, was ineligible for youthful offender status, and so he was offered an opportunity to plead guilty to a class D violent felony, with no condition of incarceration. The acting Justice equated the situation to a "prank” and granted the motion to dismiss in furtherance of justice. While there was no actual force used, there was certainly intimidation with force implied. Moreover, it could not be said that this was a prank considering the fact that the law enforcement authorities had a policeman posing as a delivery boy in an attempt to stop a rash of such robberies.
Under the circumstances, there was an abuse of discretion, and the dismissal should be reversed, the indictment reinstated and the matter remanded for further proceedings. (People v Riccelli, 149 AD2d 941.) Nonetheless, it should be emphasized that this problem arises because the acting Justice was confronted with a Hobson’s choice of dismissing the indictment or permitting the prosecution of a class D violent felony for what is basically a petit larceny. If abuse of discretion there be, it is that of the District Attorney who posed such a disparate choice.