People v Wood
Annotate this CaseDecided on November 22, 2006
County Court, Essex County
People of the State of New York,
against
Leon R. Wood, Defendant.
06-040
(Appearances: Julie A. Garcia, Esq., Essex County District Attorney (Robert M. Winn, Esq., of counsel), Elizabethtown, New York; Livingston L. Hatch, Esq., Essex County Public Defender, Elizabethtown, New York)
Richard B. Meyer, J.
Omnibus motion by the Defendant for dismissal of the indictment dated May 17, 2006, and for other relief in the nature of suppression and preclusion of evidence, and the scheduling of hearings in connection therewith.
Defendant is charged by a four-count indictment with having allegedly committed the crimes of Criminal Contempt in the first degree (Penal Law §215.51[b][v]), a Class E felony, Resisting Arrest (Penal Law §205.30), a class A misdemeanor, Criminal Possession of a Controlled Substance in the seventh degree (Penal Law §220.03), a class A misdemeanor, and Harassment in the second degree (Penal Law §240.26[1]), a violation. The criminal contempt, resisting arrest and harassment charges arise out of an incident occurring on or about March 27, 2006, at the Defendant's residence in the Town of Moriah, Essex County, New York in which Defendant is alleged to have violated an order of protection issued by the Town of Moriah Justice Court on November 10, 2005 by bumping his chest against the alleged victim after a verbal argument and while she was attempting to call 911. The criminal possession of a controlled substance charge is founded upon the allegation that a packet containing an illegal substance was found by law enforcement on the floor of the police station near where the Defendant was sitting after being taken into custody. [*2][*3]
The Defendant was arraigned on May 22, 2006, and entered a plea of not guilty to all charges. Defendant's omnibus motion was timely filed, and the People served a response on August 4, 2006. While the omnibus motion was pending, the Defendant filed a separate motion to dismiss counts 1 and 2 of the indictment on the grounds that the November 10, 2005 order of protection, the violation of which formed the basis for those two counts, had been "vacated and deemed null and void nunc pro tunc" by an order dated September 11, 2006 of the local criminal court which had issued the order of protection. No papers opposing this subsequent motion were served by the People on or before the return date.
Upon the motion papers, the minutes of the proceedings before the grand jury, the indictment and such other papers on file with the Court, and the proceedings heretofore had herein, and due deliberation having been had thereon, the decision and order of the Court and Defendant's omnibus motion is set forth below.
I.INSPECTION OF GRAND JURY MINUTES
The Defendant's motion to inspect the grand jury minutes is granted.
II.DISMISSAL OF COUNT 1 AND COUNT 2 OF THE INDICTMENT
Notwithstanding the lack of opposition to the Defendant's motion, this Court is compelled to dismiss Count 1 and Count 2 of the indictment based upon review of the grand jury minutes. It is clear that the criminal contempt count of the indictment is based upon the Defendant's alleged violation of the order of protection (now vacated ab initio), and that the resisting arrest charge arises out of law enforcement's attempt to arrest the Defendant for such violation. The uncontradicted testimony before the grand jury was that three law enforcement officers, one from the Town of Moriah Police Department and two New York State Troopers, entered the residence of the Defendant to arrest the Defendant for violating the order of protection and encountered difficulties with the Defendant in effectuating that arrest. The underlying basis for that arrest the November 10, 2005 order of protection having been vacated, the Defendant's motion to dismiss Count 1 and Count 2 of the indictment is granted and these two counts of the indictment are hereby dismissed on the merits.
III.DISMISSAL OF INDICTMENT AS DEFECTIVE
The Court has reviewed the grand jury testimony pertaining to the remaining counts of the indictment charging the defendant with criminal possession of a controlled substance in the seventh degree and harassment in the second degree, and both counts must be dismissed due to defects in the grand jury proceedings. Dismissal of an indictment pursuant to CPL §210.35 is warranted where a defendant shows that the integrity of the grand jury process was impaired and that the defect "created the possibility of prejudice" (People v Huston, 88 NY2d 400, 409, 646 NYS2d 69, 74, 668 NE2d 1362, 1368, citing People v. Di Falco, 44 NY2d 482, 487, 406 NYS2d 279, 283, 377 NE2d 732, 736) affecting the ultimate decision reached by the grand jury (People v Huston, supra at 409, 646 NYS2d at 75, 668 NE2d at 1368). Actual prejudice need not be shown (People v Huston, supra at 409, 646 NYS2d at 74, 668 NE2d at 1368). "Courts have a particular responsibility to prevent unfairness in Grand Jury proceedings, for the Grand Jury is an arm of the court' (see, e.g., Matter of Spector v. Allen, 281 NY 251, 260, 22 NE2d 360, 364; People v. Pisanti, 179 Misc. 308, 309, [*4][*5]38 NYS2d 850, 851)." (People v. Ianniello, 21 NY2d 418, 424, 288 NYS2d 462, 468, 235 NE2d 439, 443).
A defendant who elects to testify before a grand jury may be impeached by his/her prior convictions (see People v. Smith 87 NY2d 715, 642 NYS2d 568, 665 NE2d 138). However, to avoid the possibility of prejudice to the defendant, the grand jury should be given limiting instructions by the district attorney that such evidence may only be considered on the issue of the defendant's credibility and not as proof that the defendant committed the crimes under consideration (see People v. Thompson, 116 AD2d 377, 382, 501 NYS2d 381, 384); People v. Adams, 81 Misc 2d 528, 366 NYS2d 311; People v. Hargrove, 80 Misc 2d 317, 363 NYS2d 241), unless the totality of the evidence before the grand jury is so overwhelming against the defendant that "[t]here was no significant probability that the [grand] jury would have [returned a no bill against] the defendant had the error complained of not occurred" (People v. Thompson, supra at 382, 501 NYS2d at 384 citing People v. Brown, 78 AD2d 903, 904, 433 NYS2d 208).
Here, the totality of the evidence before the grand jury was not overwhelming against the defendant as both the defendant and the alleged victim testified to differing versions of events, and the evidence on the criminal possession charge is circumstantially based upon constructive possession. In drug prosecutions, there is a greater risk of prejudice resulting from the use of prior drug convictions "because of the inevitable pressure on lay jurors to believe that if he did it before he probably did so this time.'(US v. Puco, 453 F2d 539, 542). The prosecutor's questioning of the defendant regarding his prior convictions for criminal possession of a controlled substance and for robbery, as well as to whether he had served two and one-half to five years in state prison, was sufficient, absent the limiting instruction, to create the requisite degree of possible prejudice to the defendant and require dismissal of the indictment.
IT IS SO ORDERED.
Decision and Order signed this 22nd day of November, 2006 at Elizabethtown, New York.
ENTER
________________________________
Richard B. Meyer
Essex County Judge
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