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PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE.

The Second Department, reversing Supreme Court, determined the grand jury proceedings were defective because of the prosecutor’s failure to instruct the jury on the defense of common ownership. Defendant testified in the grand jury that the property alleged to have been stolen was jointly owned with the complainant, who was a partner in the business. The conviction was reversed in the interest of justice and the indictment was dismissed:

” [A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment… .

Viewing the evidence before the grand jury in the light most favorable to the defendant … , we find that there was a reasonable view of the evidence warranting instructions on the definition of joint or common owner and the defense of claim of right. Penal Law § 155.00(5) provides that “[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.” Consequently, a partner may not be charged with stealing the partnership’s assets from another partner … . Pursuant to Penal Law § 155.15(1) “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” The defendant’s grand jury testimony indicated that the defendant’s relationship with the complaining witness was that of a partner, not an employee … and that the defendant took the funds at issue under a claim of right … . Consequently, the District Attorney’s failure to instruct the grand jury with respect to the definition of joint or common owner and the defense of claim of right so substantially impaired the integrity of the proceedings as to require the dismissal of the indictment … . People v Tunit, 2017 NY Slip Op 03201, 2nd Dept 4-26-17

 

CRIMINAL LAW (PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)/GRAND JURY (PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)/COMMON OWNERSHIP DEFENSE (CRIMINAL LAW, PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)

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