In People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973) the Second Department held that the lower Court could not, sua sponte, dismiss the indictment against the defendant pursuant to CPL 210.40 and 210.45, but must give the People and the defendant an opportunity to present evidence they think should be considered by the Court before it decides whether to dismiss the indictment based upon some compelling factor, consideration, or circumstance that clearly demonstrates that the conviction or prosecution of the defendant on the pending charges would result in injustice.