People v. Mitchell

—Order unanimously reversed and indictment reinstated. Memorandum: The defendant was charged with multiple crimes resulting from an incident during which he became intoxicated and fired a pistol several times in a public bar. In attempting to subdue defendant and avoid personal injury, a police officer shot and seriously injured defendant with the result that he is partially paralyzed. That unfortunate circumstance, however, coupled with the requirement that defendant must be *1013imprisoned because he is a second felony offender is not sufficient to satisfy the guidelines governing dismissal in the interest of justice established in People v Clayton (41 AD2d 204, 208) and approved generally by this court (People v Belkota, 50 AD2d 118; and see People v Murry, 57 AD2d 711) and the trial court should not have dismissed the indictment. (Appeal from order of Erie Supreme Court—dismiss indictment.) Present—Moule, J. P., Cardamone, Simons, Schnepp and Witmer, JJ.