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Grand Jury Proceeding Not Tainted by Excused Juror’s Statements About Having Arrested and Having Been Threatened by Defendant

The Third Department reversed County Court’s dismissal of indictments based upon a finding the integrity of the grand jury had been impaired.  A potential grand juror was excluded after stating he had arrested the defendant at least once and the defendant had threatened his family.  The Third Department wrote:

The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor’s efforts in that regard to be inadequate, “the grand jury is presumed to have followed the prosecutor’s curative instructions, dispelling any prejudice to [] defendant”….  Furthermore, given the strength of the evidence supporting the indictments, the grand juror’s comment lacked the potential to prejudice the grand jury’s ultimate decision….   Accordingly, dismissal of the indictments was unwarranted.  People v Farley, 103105, 3rd Dept 6-27-13

 

Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts

The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant:

Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to  enable  defendant  to  distinguish each count. Rather than identify each count temporally or by physical evidence, the People sought to remedy the defect by providing the name of an intended victim for each count. However, reckless endangerment is a conduct-specific, rather than a victim-specific, crime….  Thus, despite the amendment, the conduct underlying each count of the indictment remained unclear, as none of the seven shots fired hit any of the individuals named in the indictment.  As a result, there is simply no way to match each count of the indictment with the specific underlying conduct of defendant that would insure that the jury had reached a unanimous verdict with regard to each count and,  therefore, the  reckless endangerment  counts  must  be dismissed as duplicitous… . People v Estella, 103574, 3rd Dept, 6-6-13

 

Failure to Get Court’s Permission to Represent to a Grand Jury Required Dismissal of Indictment​

The First Department determined that the prosecutor’s failure to get court permission to represent a case to a grand jury need not be preserved by objection and required dismissal of the indictment:

The failure to obtain court authorization to re-present the charges to a second grand jury implicates the power to prosecute…; thus, defendant was not required to alert the court to the authorization requirement of CPL 190.75(3), or otherwise object, in order to preserve the issue for appellate review. Where, as here, the prosecutor presented charges and the grand jury failed to vote to either dismiss them or indict the defendant, a situation arose “in which the court, and not the prosecutor, should have decided whether re-presentation to a second grand jury was appropriate”…. In the absence of court authorization, dismissal of the indictment is required …. People v Miller, 2013 NY Slip Op 03928, 1st Dept, 5-30-13

 

Indictment Count Did Not State an Offense; Jurisdictional Defect Can Not Be Cured by Amendment

The Third Department determined one count of an indictment was jurisdictionally defective and the People’s attempt to cure the defect by amendment was prohibited by CPL 200.70, which does not allow amendment to fix the failure to state or charge an offense:

Here, count 3 of the indictment charged defendant with conspiracy in the second degree, a crime which requires an “intent that conduct constituting a class A  felony be  performed” (Penal Law § 105.15). While count 3 references the relevant statutory section for conspiracy in the second degree and expressly states that defendant acted “with intent that conduct constituting a class A felony be performed,” it does not include any statutory reference to the class A  felony listed in count 1 of the indictment. * * *

While it is true that “[t]he incorporation [in an indictment] by  specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon” …, such reference may be negated, as it was here, by the inclusion of conduct that does not constitute the crime charged …. People v Boula, 104053, 3rd Dept, 5-30-13

 

 

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Criteria for Determining Sufficiency of Evidence Before Grand Jury Explained 

In reinstating two counts of an indictment that were dismissed upon the trial court’s review of the sufficiency of the proof before the grand jury, the Second Department wrote:

“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 the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The 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 crimes,’ and whether the Grand Jury 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 Grand Jury could rationally have drawn the guilty inference'” … .  People v Woodson, 2013 NY Slip Op 02282, 2012-02226, Ind No 1881/11, 2nd Dept 4-3-13

 

Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … . People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

 

 

Factual Sufficiency of Indictment Is Non-Jurisdictional Defect

The Third Department noted that the factual sufficiency of an indictment is a non-jurisdictional defect which does not survive a guilty plea.  People v Cruz, 104251, 3rd Dept. 3-21-13

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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Multiplicitous Indictment Count Dismissed in the Interest of Justice.

The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count).  The error was not preserved but the Court reviewed the issue “in the interest of justice.”  People vs Quinn, 1131, KA 11-00278 Fourth Dept. 2-8-13

 

Permission to Re-Submit Charges to a Second Grand Jury Was Required.

The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea.  The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges.  The prosecutor then submitted the drug charges to a second grand jury which voted to indict.  The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”.  People vs Smith, 7310, 135/10, 801/10 First Dept. 2-7-13

 

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