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Defendant’s Conviction Properly Reversed Because the Verdict Was Inconsistent/Repugnant—Charge Which Was the Subject of Conviction in the Inconsistent/Repugnant Verdict Can Be Presented to a New Grand Jury

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that defendant’s conviction was properly reversed because the verdict was inconsistent/repugnant, but that the People should be allowed to resubmit that charge to a new grand jury. Defendant was convicted of manslaughter in the first degree as a hate crime, but the jury acquitted defendant of manslaughter in the first degree.  Because, to aquit, the jury must have found that at least one of the elements of manslaughter in the first degree was not proven, the manslaughter in the first degree as a hate crime necessarily suffered from the same failure of proof.  The People argued that the jury instructions gave the jurors the impression they could acquit on the non-hate-crime manslaughter and still find the defendant guilty of the hate-crime manslaughter:

The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime … . Given that premise, “a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other,” and, “[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” … .

Accordingly, repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and “[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict” … . In making these determinations, it is inappropriate for the reviewing court to “attempt to divine the jury’s collective mental process” … . “Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts” … . * * *

There is no constitutional or statutory provision that mandates dismissal for a repugnancy error. Given that New York’s repugnancy jurisprudence already affords defendants greater protection than required under the Federal Constitution, permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance. This is particularly so given that a reviewing court can never know the reason for the repugnancy. Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury … . People v DeLee, 2014 NY Slip Op 08212, CtApp 11-24-14

 

Defendant Not Given Adequate Time to Decide Whether to Testify Before the Grand Jury—Conviction Reversed

In reversing defendant’s conviction, the Fourth Department determined defendant was not given adequate time to decide whether he wished to testify before the grand jury:

We agree with defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testify before the grand jury. The prosecutor notified defendant and his counsel at the arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict defendant, he was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of defendant’s intent to testify. The prosecutor offered defendant the opportunity to testify before the grand jury before it filed the indictment, but refused defendant’s request to testify before a different grand jury.

We agree with defendant that he was not given “reasonable time to exercise his right to appear as a witness” before the grand jury (CPL 190.50 [5] [a]). “CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” … . Under “the particular facts” of this case (id. ), including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation, we conclude that defendant did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury … . People v Hymes, 2014 NY Slip Op 08202, 4th Dept 11-21-14

 

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Sole Eyewitness’ Testimony at Trial Indicating She Could Not Identify the Shooter (Because of the Passage of Time and the Effects of Alcoholism and Depression) Did Not Allow the Prosecutor to Impeach Her with Her Grand Jury Testimony and Prior Identification of the Shooter

In reversing defendant’s conviction, the Second Department explained that the prosecution should not have been allowed to impeach its own witness when the witness failed to identify the shooter in her trial testimony.  In addition, it was error to allow a detective to testify that the witness previously identified the defendant:

…[T]he Supreme Court erred in permitting the prosecutor to impeach the sole eyewitness with her grand jury testimony and photo array identification of the shooter. A party may impeach its own witness with prior inconsistent statements only when the testimony of that witness on a material issue tends to disprove the party’s position or affirmatively damages the party’s case (see CPL 60.35…). “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . Here, the testimony of the eyewitness that she did not remember the face of the shooter and could not identify the shooter because of the passage of time between the shooting and the trial, and because of her struggles with alcohol and depression, did not tend to disprove or affirmatively damage the People’s case … . Accordingly, it was error to permit the prosecutor to impeach the testimony of the eyewitness with her grand jury testimony and photo array identification. People v Ayala, 2014 NY Slip Op 07362, 2nd Dept 10-29-14

 

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Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply

The Third Department reversed defendant’s conviction by guilty plea, finding that the defendant’s waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:

A trial court must ensure that a defendant’s waiver of the right to appeal is knowing, intelligent and voluntary … . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, “separate and distinct from those rights automatically forfeited upon a plea of guilty” … . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about “the circumstances surrounding the document’s execution” or confirm that defendant had been fully advised by counsel of the document’s significance … . As such, the appeal waiver was invalid … .

On the merits of defendant’s appeal, a criminal defendant’s right to receive the assistance of counsel attaches at arraignment “and entails the presence of counsel at each subsequent critical stage of the proceedings” … . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel … . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury … or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process … . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied … . Further, we observe that, while defendant’s motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before County Court … . Inasmuch as defendant was not afforded an opportunity to consult with counsel “and make an informed decision as to whether to appear before the [g]rand [j]ury”…, the resulting deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment … . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14

 

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Grand Jury Testimony Given a Year After the Relevant Event Should Not Have Been Admitted as “Past Recollection Recorded”—New Trial Ordered

After noting that the defendant, who refused to sign a written waiver of his right to remain silent, waived the right by agreeing to speak to the police, the Second Department determined grand jury testimony, given a year after the relevant event, should not have been allowed in evidence as past recollection recorded:

“The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . In light of the one-year gap between the time the witness allegedly heard the defendant’s alleged inculpatory statements and the witness’s grand jury testimony, the People failed to establish that the witness’s recollection of the matter was “fairly fresh when recorded or adopted” during the grand jury proceeding … . People v Wilkinson, 2014 NY Slip Op 05661, 2nd Dept 8-6-14

 

Defendant Not Afforded Right to Testify Before Grand Jury—Indictment Dismissed

The Second Department determined the indictment must be dismissed (without prejudice) because the defendant was not afforded his right to testify before the grand jury:

CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. “[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify . . . after the Grand Jury ha[s] committed itself to a vote based on the prosecution’s ex parte presentment of evidence” … . Thus, a defendant who provides timely notice “prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote” … .

Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear (see CPL 190.50[5][a]…). Here, the People’s notice pursuant to CPL 190.50 indicated that the defendant was “scheduled to testify” before the grand jury on June 8, 2010, and that his testimony was required to have been given before 5:00 p.m. on that date. The record reveals that the defendant provided the People with written notice of his intent to testify before the grand jury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, the defendant provided the People with the requisite notice more than 24 hours in advance of his proposed appearance. Under these circumstances, the defendant was entitled to testify prior to the grand jury’s vote. People v Ellison, 2014 NY Slip Op 04957, 2nd Dept 7-2-14

 

Error in Grand Jury Presentation Did Not Raise a Question of Prejudice Sufficient to Justify Dismissal of the Indictment

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

 

Court Has Inherent Authority to Reinstate Indictment After Dismissal for Legal Insufficiency

The First Department determined the motion court properly exercised its discretion in reinstating the indictment when presented with a portion of the grand jury minutes which had inadvertently been omitted from the original submission.  The court had dismissed the indictment finding the grand jury evidence legally insufficient:

The court had inherent authority to reinstate the indictment …, and defendant’s claim that the indictment was unlawfully amended is without merit, because the text of the indictment remained unchanged. People v Godbold, 2014 NY Slip Op 03624, 1st Dept 5-20-14

 

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Defense Counsel, Not Defendant, Has the Ultimate Authority to Determine Whether Defendant Should Testify Before the Grand Jury

The First Department (after noting that the record supported closing the courtroom for the undercover officer’s testimony, even though the trial court did not discuss alternatives) determined the trial court properly found defense counsel had the ultimate authority to decide whether defendant should testify before the grand jury and therefore properly denied defendant’s request to testify against the advice of his attorney:

Criminal Court … properly determined that defense counsel had the ultimate authority to decide whether his client should testify before the grand jury, and properly denied defendant’s request to testify against the advice of his attorney. Defendant’s argument “incorrectly equates the right to testify before the grand jury with the right to testify at trial” … . “[U]nlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant . . . with respect to strategic and tactical decisions like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority in their lawyers” … . The strategic decision to testify before the grand jury requires the “expert judgment of counsel” …, because it involves weighing the possibility of a dismissal, which, in counsel’s judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses. People v Brown, 2014 NY Slip Op 02683, 1st Dept 4-17-14

 

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Court Review of Sufficiency of Evidence Before a Grand Jury Explained

The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment.  The court explained how the sufficiency of evidence before a grand jury is analyzed:

On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” … . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” … . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” … .  People v Forsythe, 359, 4th Dept 3-28-14

 

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