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Perjury Allegations Lacked Requisite Specificity, Indictment Should Have Been Dismissed

The Fourth Department determined the indictment did not meet the “specificity” pleading-requirements for perjury, and the charge to the grand jury was similarly defective:

“An indictment for perjury must contain all of the essential elements of the offense . . . and must set forth the alleged false testimony so as to apprise the defendant of the particular offense with which he [or she] is charged” … . Here, “[n]othing in the record before us gives any indication what the [grand] jury thought was false” … . Because the indictment failed to identify the particular falsehoods alleged to have been made by defendant, the indictment failed to provide her with the requisite “fair notice of the accusations made against [her], so that [she would] be able to prepare a defense” … .

Moreover, despite numerous pretrial requests for particularization by defense counsel, the People never identified the particular falsehoods allegedly made by defendant … . Rather, the prosecutor identified particular subject “areas that [he] believe[d] [were] perjurious.” ” To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jur[ors] at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him [or her]’ . . . The lack of specific allegations in the District Attorney’s charge to the [g]rand [j]ury on the perjury count renders it impossible to determine which specific statement or statements of [defendant] the [g]rand [j]ury found to be false. It is impossible to determine what the [g]rand [j]ury intended when it voted on the perjury charge . . . Since the [g]rand [j]ury presentation and legal instructions do not answer these questions, the perjury count [should have been] dismissed”… . People v Heatherly, 2015 NY Slip Op 07111, 4th Dept 10-2-15

 

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