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COUNTY COURT SHOULD NOT HAVE DETERMINED THE INTEGRITY OF THE GRAND JURY WAS COMPROMISED BY THE PROSECUTOR’S FAILURE TO INQUIRE FURTHER INTO THE POTENTIAL BIAS OF A GRAND JUROR, A TEACHER, WHO HAD TAUGHT THE DEFENDANT TEN YEARS BEFORE, INDICTMENT REINSTATED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, that the integrity of the grand jury was not affected by the prosecutor’s alleged failure to inquire about the potential bias of a grand juror. One of the grand jurors was a teacher and the defendant had been his student 10 years before:

“Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury” . “The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inapp… ropriate prosecutorial influence or bias” … . Prejudice may arise based upon a close relationship between a grand juror and a witness … . …

The record discloses that one of the grand jurors knew one of the testifying witnesses. The grand juror, who used to be a teacher and had been retired for 10 years, stated that the witness was a former student and that he had not seen the witness since the student left his class. The grand juror was then asked whether there was anything else that would affect his ability to be fair and impartial, to which he responded, “No.” In our view, the relationship between the grand juror and the witness was not a close relationship so as to give rise to the possibility of prejudice … . Furthermore, although the prosecutor’s voir dire of the grand juror was brief, we are satisfied that, based upon his unequivocal response thereto, the grand juror’s impartiality was not compromised … . People v Henriquez, 2019 NY Slip Op 04503, Third Dept 6-6-19

 

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THE COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT WAS INFORMED... ALTHOUGH DEFENDANT WAS WARNED HE WOULD BE SENTENCED EVEN IF HE DIDN’T...