In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14
The Third Department determined the defendant’s motion to sever the counts of the indictment, which involved different child victims of sexual abuse, was properly denied. The court further determined the defendant’s motion for a taint hearing (to explore whether a child-victim’s allegations were the result of suggestive questioning) was properly denied:
Although charges arising out of different criminal transactions are properly joinable where, as here, “such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20 [2] [c]…), a court nonetheless may “in the interest of justice and for good cause shown” exercise its discretion and order that such offenses be tried separately (CPL 200.20 [3]…). Good cause, in turn, may be established by demonstrating, among other things, that there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense” (CPL 200.20 [3] [a]…). Simply put, defendant failed to make such a showing here. * * *
Notwithstanding the absence of “express statutory authority for a hearing to determine whether the testimony of [a] child witness[] has been tainted by suggestive interviewing techniques,” a court nonetheless may “[u]pon a proper showing” by the defendant direct that a pretrial taint hearing be held … . Noticeably absent from defendant’s motion papers was any indication that victim B’s mother engaged in leading or otherwise suggestive questioning of victim B regarding any inappropriate contact that she may have had with defendant. Moreover, “any suggestibility, the manner of questioning and its effects on [victim B’s] testimony could be, and was, addressed on cross-examination of [victim B and her mother]” at trial… . People v Milford, 2014 NY Slip Op 04278, 3rd Dept 6=12=14
The Court of Appeals determined the grand jury proceedings were not rendered invalid by the presentation of the videotaped testimony of the child-victim who had not been administered an oath. After realizing the oath had been omitted, the prosecutor presented the testimony to the grand jury again, this time preceded by the oath. The Court of Appeals found the defendant had not established the possibility of prejudice:
The People do not dispute that an oath should have been administered to Jane during the first testimonial recording (see e.g. CPL 60.20 [2]; CPL 190.32 [5]…). On these facts, however, the error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings … . The lack of an oath was not the product of a nefarious design to deliberately cause unfairness to defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which Jane swore to be honest and verified the truth of her prior statements. The grand jury then watched the second video and was instructed that the recording was made because Jane had not taken an oath during her first examination. Based on these circumstances, defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment… . People v Wisdom, 2014 NY Slip Op 04040, CtApp 6-5-14
In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained:
“ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” … . As the Court of Appeals has stated, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .
Here, the prosecutor was required to establish that the four-year-old victim could provide unsworn testimony, but failed to do so… . The prosecutor also violated the unsworn witness rule during an attempt to persuade the child to testify about the incident … . Nevertheless, we conclude that the prosecutor did not thereby engage in conduct that was fraudulent in nature, nor was the prosecutor’s conduct so egregious as to impair the integrity of the grand jury proceedings … . We further conclude that the remaining evidence is legally sufficient to sustain the indictment. People v Elioff, 1002, 4th Dept 10-4-13
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