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Under the Facts, the Prosecutor Was Not Obligated to Present Exculpatory Evidence to the Grand Jury—Defendant Did Not Exercise His Right to Testify Before the Grand Jury

The First Department determined defendant’s motion to set aside the verdict on the ground the prosecutor did not charge the grand jury on the justification defense was properly denied. The indictment alleged the defendant attacked the victim, Valdez, with a machete. At trial, the defendant testified that Valdez attacked him with a baton and he used a knife in self-defense. It was revealed at trial that Valdez did in fact have a baton at the time of incident, that Valdez had not told the police about the baton, and that, months later, he told the prosecutor about the baton before the matter was presented to the grand jury. The defendant chose not to testify before the grand jury. No mention of the baton, or that the defendant made a statement claiming he acted in self-defense, was made in the grand jury proceedings and the grand jury was not instructed on the justification defense. The First Department held that the prosecutor’s failure, in the grand jury proceedings, to present evidence the victim had a baton, or that defendant stated he acted in self-defense, did not amount to misconduct justifying the dismissal of the indictment. The court emphasized the defendant’s failure to exercise his right to testify before the grand jury to present exculpatory evidence, and explained the nature of the prosecutor’s duty to present exculpatory evidence to the grand jury:

It is axiomatic that a prosecutor, in presenting evidence and potential charges to a grand jury, is ” charged with the duty not only to secure indictments but also to see that justice is done'” … . The role of the grand jury is not only to investigate criminal activity to see whether criminal charges are warranted but also to protect individuals from needless and unfounded charges … . For that reason, justification, as an exculpatory defense that if accepted eliminates any grounds for prosecution, should be presented to the grand jury when warranted by the evidence … . However, a prosecutor, in presenting a case to a grand jury, is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury” … . Thus, a prosecutor is not obligated to present to the grand jury a defendant’s exculpatory statement made to the police upon arrest … . Where, however, a prosecutor introduces a defendant’s inculpatory statement to the grand jury, he is obligated to introduce an exculpatory statement given during the course of the same interrogation which amplifies the inculpatory statement if it supports a justification defense … . * * *

Assuming arguendo that, as claimed by defendant and denied by the People, the ADA did know about the … baton at the time of the grand jury proceedings, dismissal of the indictment based on the failure to charge the grand jury on justification still would not be warranted. “[A] Grand Jury proceeding is not a mini trial . . . The prosecutor . . . need not disclose certain forms of exculpatory evidence . . . [Nor is] the prosecutor . . . obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense” … . As previously noted, a prosecutor is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury”… . People v Morel, 2015 NY Slip Op 06865, 1st Dept 9-22-15

 

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County Court Should Not Have Dismissed the Indictment on a Ground Not Raised by the Defendant Without Giving the People the Opportunity to Address the Issue

After reviewing the grand jury testimony, County Court dismissed the indictment on a ground (the complainant’s lack of testimonial capacity) not raised in defendant’s omnibus motion.  The Second Department reversed because the People had not been given the opportunity to address the issue:

In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment on the general grounds that the grand jury proceedings were defective and that the charges were not supported by legally sufficient evidence before the grand jury. The County Court, upon its own examination of the grand jury minutes, determined, sua sponte, that there was an issue as to the complainant’s testimonial capacity, and dismissed the indictment on the ground that the complainant lacked testimonial capacity.

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond. A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Moreover, “orderly procedures require that the People be given the opportunity to address any alleged defects prior to dismissal of an indictment”… . People v Coleman, 2015 NY Slip Op 06676, 2nd Dept 8-26-15

 

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Re: the Unsealing of the Grand Jury Proceedings Concerning Eric Garner’s Death at the Hands of the Police, a “Compelling and Particularized Need” for Disclosure Had Not Been Demonstrated—the Public Interest in Preserving Grand Jury Secrecy Outweighed the Public Interest in Disclosure

The Second Department, in an extensive, detailed decision (not fully summarized here), determined that the grand jury proceedings concerning the death of (unarmed) Eric Garner at the hands of the police (who were not indicted) should not be unsealed. As a threshold issue, the court found that New York City’s Public Advocate, pursuant to the terms of the City Charter, did not have the capacity to bring the petition. However, the other petitioners, the Legal Aid Society, the New York Civil Liberties Union, and the local branch of the NAACP, had standing to bring the petition. In essence, the court held that petitioners had not demonstrated the requisite “compelling and particularized” need for disclosure and the public interest in preserving grand jury secrecy outweighed the public interest in disclosure. In response to the District Attorney’s argument that the underlying order denying the petition to unseal the records was not appealable, the Second Department explained that the order was civil, not criminal, in nature (and therefore appealable). The court explained the general analytical criteria as follows:

The legal standard that must initially be applied to petitions seeking the disclosure of grand jury materials is whether the party seeking disclosure can establish a “compelling and particularized need” for access to them … . Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure … . The decision as to whether to permit disclosure is committed to the trial court’s discretion … . However, “without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance” … .

A party seeking disclosure will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding “to advance the actions or measures taken, or proposed (e.g. legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served” … . “[I]f the supposed societal benefit of maximizing the public’s awareness could by itself trump all other considerations,” there would not exist a “legal presumption against disclosure of grand jury evidence, let alone a rule providing that such presumption may be overcome only by a showing of a particularized and compelling need for disclosure” … . Significantly, courts that have permitted disclosure of grand jury evidence have uniformly done so for some purpose other than generalized public interest and dissemination … . Matter of James v Donovan, 2015 NY Slip Op 06348, 2nd Dept 7-29-15

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

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

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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Presentation of Hearsay to Grand Jury Did Not Taint the Proceedings—Criteria Explained

The Third Department determined that the admission of hearsay before the grand jury (the audio of a videotape which could not be muted) did not constitute reversible error, mainly because the prosecution did not intentionally present inadmissible evidence:

We first address defendant’s argument that the grand jury’s exposure to inadmissible hearsay so tainted the proceedings that dismissal of the indictment is required. Dismissal of an indictment is an extreme remedy that is limited to “‘those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury'” … . Defendant’s challenge relates to a recording of the bar’s security camera footage that depicted the attack on the victim. Specifically, the victim’s son made a video recording of a monitor as it played the surveillance footage, during which recording he and another person can be heard making several comments regarding the severity of the attacks upon the victim. The People explained to Supreme Court that they were unable to mute the video as it was being played during grand jury proceedings, and that the prosecutor provided an instruction to disregard the audio component of the video recording. Thus, it is apparent that the People did not intentionally present inadmissible hearsay or otherwise engage in an “over-all pattern of bias and misconduct” … . Moreover, in light of the ample evidence supporting the assault in the second degree charge against defendant, we find no basis to determine that the hearsay evidence rendered the indictment defective … . People v Boddie, 2015 NY Slip Op 105524, 3rd Dept 3-12-15

 

Defendant Should Not Have Been Denied His Right to Testify Before the Grand Jury Because He Struck Out Waiver Provisions Not Required by Statute

The Court of Appeals determined defendant was denied his right to testify before the grand jury.  The waiver presented to the defendant as a prerequisite to his testifying included the provisions required by statute, plus three additional provisions.  The defendant struck out the additional provisions and signed the waiver.  Because the defendant struck out the three additional provisions, he was not allowed to testify by the district attorney.  The Court of Appeals held that the signed waiver was sufficient, without the struck-out provisions, because it included all the provisions required by statute.  Therefore, defendant should have been allowed to testify:

CPL 190.50 (5) provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to CPL 190.45. The parties do not dispute that defendant complied with the first two requirements of CPL 190.50 (5). Rather, the issue presented on this appeal is whether defendant complied with the third requirement of signing a waiver of immunity. CPL 190.45 (1) provides:

“A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . . “

The People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. * * *

Defendant’s statutory right to testify before the grand jury was violated. This right “‘must be scrupulously protected'” … . Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify. People v Brumfield, 2015 NY Slip Op 01377, CtApp 2-17-15

 

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Evidence Sufficient to Support Count Charging Sexual Abuse First Degree, Despite Evidence Defendant Did Not Touch the Victim for the Purpose of Gratifying Sexual Desire

The Fourth Department determined the evidence presented to the grand jury was sufficient to support the count charging sexual abuse in the first degree.  The issue was whether there was sufficient evidence defendant touched the victim for the purpose of gratifying sexual desire.  Based upon what the defendant said at the time, the purpose of his touching the victim was to determine whether she had recently had sex with another.  The court explained the level of proof required at the grand jury stage:

” Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10 [1]). Thus, “[o]n a motion to dismiss an indictment based on legally insufficient evidence, the issue is whether the evidence before the [g]rand [j]ury establishes a prima facie case” … . In deciding a motion to dismiss a count of an indictment for legally insufficient evidence, a “reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crime[],' and whether the [g]rand [j]ury could rationally have drawn the guilty inference' . . . That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the [g]rand [j]ury could rationally have drawn the guilty inference' ” … .

As relevant here, “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion” (Penal Law § 130.65 [1]), and sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (§ 130.00 [3]). Consequently, the People were required to submit sufficient evidence from which the grand jury could have inferred that defendant touched the victim's vagina for the purpose of gratifying his or the victim's sexual desire. It is well settled that, “[b]ecause the question of whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator” … . Here, we conclude that the evidence before the grand jury, viewed in the light most favorable to the People, was sufficient to permit the grand jury to infer that defendant touched the sexual and intimate parts of the victim's body by forcible compulsion for the purpose of gratifying his sexual desire … . To require, as defendant suggests, that the reviewing court accept the explanation that defendant proffered for his conduct, “would skew a reviewing court's inquiry and restrict, if not extinguish, the [g]rand [j]ury's unassailable authority to consider logical inferences that flow from the facts presented to it” … . People v Hoffert, 2015 NY Slip Op 01083, 4th Dept 2-6-15


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Proof Presented to Grand Jury Was Sufficient to Support Allegation Defendant “Caused” the Death of a Police Officer Killed by Another Driver While Responding to the Accident In Which Defendant Was Involved

The Second Department determined the evidence before the grand jury was sufficient to support the charge that defendant, who had been involved in a vehicle accident and was allegedly under the influence of alcohol, “caused” the death of a police officer who was struck by a car at the accident scene.  The court explained the nature of the proof required to support the charge that the defendant “caused” the death of another:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'” … . ” Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10[1]).

In order to be held criminally liable for a person's death, a defendant must have engaged in conduct that “actually contribute[d]” to that person's death … . The defendant's actions need not be the sole cause of death and, indeed, the defendant need not have committed the fatal act to be liable … . The test is, instead, whether it may be reasonably foreseen that the defendant's actions would result in the victim's death; if so, the defendant's actions may, under the criminal law, constitute a “sufficiently direct cause” of the death to warrant criminal liability for it … .

Here, viewing the evidence before the grand jury in the light most favorable to the prosecution …, we find that there was legally sufficient proof before the grand jury that the defendant's actions “caused” the officer's death. Specifically, it was reasonably foreseeable that the defendant's conduct would cause collisions and that the police would respond and be required to be in the roadway, where they would be exposed to the potentially lethal danger presented by fast-moving traffic … . People v Ryan, 2015 NY Slip Op 00915, 2nd Dept 2-4-15


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Admission Into Evidence of Nontestifying Codefendant’s Grand Jury Testimony Violated Defendant’s Sixth Amendment Right of Confrontation

The First Department reversed defendant’s conviction, finding that the admission into evidence of the codefendant’s grand jury testimony violated the rule announced in Bruton v US, 391 US 123:

Under Bruton v United States, “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” … . Since the rule only applies where the codefendant’s statement was “incriminating on its face, and [not where it] became so only when linked with evidence introduced later at trial” …, the question before us is whether the codefendant’s grand jury testimony was facially incriminating as to defendant, rather than incriminating only when linked to other evidence. * * *

Although the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was “facially incriminating” as to defendant within the meaning of Bruton.

The codefendant’s narrative placed defendant with the codefendant throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct. Among other things, the statement recounted that, after defendant’s return to the codefendant’s car following an absence to “get food,” the alleged robbery victim (an undercover officer) appeared at the car window, asked where the “stuff” was, and dropped prerecorded buy money (the property allegedly stolen in the charged robbery) into the car. This narrative suffices to create an inference that defendant, while outside the codefendant’s vehicle, had purported to set up a deal for a sale of contraband that was to culminate in the vehicle, but did not fulfill the deal once he entered the vehicle.  People v Johnson, 2014 NY Slip Op 08765, 1st Dept 12-16-14

 

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