People v Shirah

[*1] People v Shirah 2008 NY Slip Op 52570(U) [22 Misc 3d 1101(A)] Decided on December 24, 2008 Yates County Ct Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2008
Yates County Ct

The People of the State of New York

against

Michael W. Shirah, Defendant.



08-44



APPEARANCES:

Hon. Susan H. Lindenmuth

Yates County District Attorney

(Jason L. Cook, Esq., of Counsel)

Attorney for the People

Edward J. Brockman, Esq.

Yates County Public Defender

Attorney for the Defendant.

W. Patrick Falvey, J.

Defendant, Michael W. Shirah, was indicted on July 11, 2008 for one count of Attempted Assault in the Second Degree, a class E felony, in violation of Penal Law §§110.00 and 120.05(9) and two counts of Endangering the Welfare of a Child, a class A Misdemeanor, in violation of Penal Law §260.10(1). Defendant was initially charge by Informations in the Village of Penn Yan Justice Court on June 18, 2007 for one Count each of Assault in the Third Degree (Penal Law §120.00) and Endangering the Welfare of a Child [Penal Law §260.10(1)] both class A Misdemeanors.

Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated November 14, 2008 and accompanying Affirmation.

Upon argument of his Omnibus Motions on December 16, 2008 certain branches and elements therein were decided and determined upon said argument and incorporated into an order.

The Court also reserved decision, at the conclusion of oral arguments on the following issues:

1. The Grand Jury proceedings failed to conform to the requirements of CPL Article 190 pursuant to CPL sections 210.20(1)(c) and 210.35;

2. Inspection of the Grand Jury minutes and, upon such inspection, for a dismissal of the [*2]indictment on the grounds that it was defective and/or the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser offenses as well as other stated grounds. CPL sections 210.20(1)(a) and (b) and 210.30; or in the alternative,

3. Reduction pursuant to CPL section 210.20(1-a).

Based on the defendant's motion papers, the District Attorney's affirmation in opposition dated December 5, 2008; all submissions, the Grand Jury Minutes, the arguments had and all the proceedings herein the Court decides as follows:

THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM

TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS

The defendant requests that the Court disclose the minutes of the Grand Jury proceedings. However, maintaining the secrecy or confidentiality of grand jury minutes is a matter of paramount public interest. Ruggiero v. Fahey, 103 AD2d 65. The secrecy is jealously guarded because confidentiality of its proceedings is necessary to ensure its continued effectiveness. Matter of Grand Jury, New York County, 125 Misc 2d 918.

However, in the discretion of the Trial Court, disclosure may be directed, when after balancing of the public interest in disclosure against one favoring secrecy, the former outweighs the latter. Matter of District Attorney of Suffolk County, 58 NY2d 436; Application of Fojp Service Corp., 119 Misc 2d 287.

In order for the Court to release the grand jury minutes to defense counsel, counsel must "first establish a compelling and particularized need for them". People v. Shakiya Robinson and Bruce Jamsen, 98 NY2d 755. "Only then must the court assess in its discretion, whether disclosure is appropriate under the circumstances". People v. Fetcher, 91 NY2d 765. It is a two-step process that conforms to the due process requirements of the Constitution. People v. Ramos, 85 NY2d 678.

Based on a review of the Grand Jury Proceedings the Court determines that it does not need counsel's assistance by turning over said minutes in order to properly rule on this issue. The Court finds no compelling and particularized need for disclosure, persuasive enough to overcome the strong presumption in favor of secrecy. Fojp, supra . Furthermore, the defendant was not able to meet his burden to establish a compelling need for the minutes.

The defendant moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35.

An Indictment regular on its face must be presumed to have been properly returned by the Grand Jury. People v. Smith, 128 NYS2d 90, aff'd 283 AD 775. Furthermore, Grand Jury proceedings carry a presumption of regularity and to overcome that presumption there must be a showing by the defendant of a particularized need or gross and prejudicial irregularity in the proceedings or some other similarly compelling reason. People v. Lewis, 98 AD2d 853.

The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).

An Indictment imparts absolute verity until properly impeached, and until there is satisfactory proof to the contrary it is presumptively regular, not only in its basis upon sufficient legal evidence but also in its foundation upon lawful proceedings by the grand jury, including [*3]due concurrence in indictment by the requisite number of grand jurors. People vs. Brinkman, 309 NY 974, 975.

The presumption is in favor of the validity of an indictment, which was presented by a grand jury, 22 of whose members were present when the case was presented. People v. Blair, 17 Misc 2d 265. And the Grand Jury is privileged to return an indictment so long as at least 12 of the Grand Jurors who voted to indict heard all the essential and critical evidence. People v. Brinkman, supra ; People v. Infante, 125 AD2d 86.

The Court finds that the presentation of the case at bar was begun and completed in one (1)day, that is, July 11, 2008, and that 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1)] and more than twelve grand jurors voted to indict the defendant herein on all counts. [CPL sections 210.35(2) and (3)].

The defendant also alleges that the Grand Jury proceeding failed to otherwise conform to the requirements of CPL Article 190 to such a degree that the defendant was prejudiced and that the Grand Jury's integrity was impaired. CPL section 210.35(5).

In conjunction with this the Court has carefully reviewed the instructions given the Grand Jury by the Court and District Attorney as well as CPL Article 190 as it pertains to the present indictment.

In order to help ensure that the Grand Jury properly performs its function, the Court and the District Attorney are designated to act as its legal advisors [see CPL section 190.25 (6)]. One of the duties of the legal advisor is that it "must instruct the grand jury concerning the law with respect to its duties or any matter before it" in instances "[w]here necessary or appropriate" [CPL section 190.25 (6)]. No statutory provision expands upon the meaning of the phrase, "necessary or appropriate", or addresses the issue of the specificity required when instructions are given. People v. Malave, 124 Misc 2d 210, 212. People v. Calbud, Inc., 49 NY2d 389, 394 as quoted in Malave, supra at pp. 212-213, states the Court of Appeals noted in part as follows:

"...due to the 'functional difference' between the grand jury and a petit jury 'it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court's instructions to a petit jury.' It further observed (p 394) that 'the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected' in CPL 190.25 (sub 6) and in CPL 300.10 (subd 2). Whereas CPL 190.25 (subd 6) merely required that the Grand Jury must be instructed where 'necessary or appropriate', the court noted (p 394) that CPL 300.10 (subd 2) contains specific requirements concerning the legal instructions that must be provided to a petit jury. The Court (pp. 394-395)

deemed 'it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material

elements of the crime.'"

"....CPL 190.60 is silent as to the duty of the legal advisor with respect to instructing the [*4]Grand Jury as to its options upon hearing the evidence before it. The language of CPL 190.60 is couched in terms of the permissive and merely provides that '[a]fter hearing and examining evidence***a grand jury may take certain prescribed actions, including voting to indict an individual for an offense and voting to dismiss the charge before it." Malave, supra p. 213.

As legal advisor, the District Attorney is entrusted with the duty of instructing the Grand Jury concerning the law or any matter properly before it and normally it is sufficient for the prosecutor to read the appropriate Penal Law sections to the Grand Jury. People v. Kennedy, 127 Misc 2d 712.

When considering the issue of sufficiency one must understand that the function of the Grand Jury is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject he or she to criminal prosecution. This function is opposed to that of a petit jury, which bears the ultimate responsibility of determining the guilt or innocence of the accused. Calbud, supra .

Therefore, a Grand Jury indictment is authorized when the evidence before it is legally sufficient to establish that such person committed a crime and competent and admissible evidence provides reasonable cause to believe that such person committed the crime. [CPL section 190.65 (1)]. And the standard of review upon a motion to dismiss for legal insufficiency is whether the evidence before the Grand Jury if unexplained and uncontradicted would warrant a conviction by a trial jury. People v. Pelchat, 62 NY2d 97; People v. DunLeavy, 41 AD2d 717, affd 33 NY2d 573.

"Legally sufficient evidence" means competent evidence which if accepted as true, would establish every element of the offense charged and the defendant's commission thereof; except when corroboration required by law is absent. [CPL section 70.10(1)].

Under CPL section 70.10(2) "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

Therefore, the evidence before a Grand Jury is legally sufficient if there is competent evidence, which, if accepted as true, establishes every element of the offense charged or a lesser included offense and the defendant's commission thereof. People v. Mayo, 36 NY2d 1002.

Thus, it has been stated that "the evidence [before the Grand Jury] must be viewed in the light most favorable to the People and it may be legally sufficient although it does not even provide "reasonable cause", to believe that the defendant committed the crime charged. People v. Deitsch, 97 AD2d 327, 329.

Here, the defendant is charged with Attempted Assault in the Second Degree alleging that he hit his three year old son in the face causing him bruising. The defendant requests that the Court review the Grand Jury Minutes to determine, among other things, whether or not the People charged the Grand Jury with the justification defense pursuant to P.L. §35.10(1).

According to William Donnino's McKinney's Commentaries to P.L. §25.00, main vol, pg 169, "Whether a defense need be charged in the grand jury does not depend on whether the defense is an ordinary defense or an affirmative defense. Rather the criterion is whether the defense is exculpatory (i.e., excuses the defendant from criminal liability) or mitigating (i.e., [*5]reduces the degree of defendant's culpability). An exculpatory defense (e.g., justification) must be charged to the grand jury; a mitigating defense (e.g. extreme emotional disturbance) need not. People v. Valles, 62 NY2d 36."

However, before a defense can be charged, "the evidence must establish that defense, requiring more from a defendant than a mere allegation." People v. Mitchell, 82 NY2d 509, quoted by Donnino, pg 170. In Mitchell, the court noted that the "Defendant failed to exercise her right to bring exculpatory evidence to the Grand Jury's attention by her own testimony or that of others testifying on her behalf." Id., 515.

"Valles does not require that every complete defense suggested by the evidence be charged to the Grand Jury; rather whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution." People v. Lancaster, 69 NY2d 20, 27. The evidence must establish that potential defense and requires more than a mere allegation by the defendant.

Whether an indictment must be dismissed is governed by CPL §210.35, and requires a showing of "possible prejudice." People v. Huston, 88 NY2d 400; People v. Di Falco, 44 NY2d 482.

"Dismissal of indictments under §210.35(5) should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias." Huston, supra , p. 409.

A review of the grand jury minutes in the case at bar shows that the People did not charge the justification defense. Thus, the court must determine, whether, the record viewed in the light most favorable to the defendant supported the justification defense. "If the District Attorney failed to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL §210.35[5]; People v. Valles, 62 NY2d 36, 38; People v. Calbud, Inc., 49 NY2d 389)." People v. Samuels, 12 AD3d 695.

In People v. Rosario, 173 M2d 641, the court held that dismissal was required of the attempted murder and assault charges due to failure to charge justification in using deadly physical force to terminate an attempted burglary, and though the grand jury was charged with justification under Penal Law §35.15, it was fatal error for the DA not to also charge justification under Penal Law §35.20, given the testimony before the Grand Jury of the defendant and his mother.

But note People v. Marquez, 8 AD3d 588, where no justification charge was required since the evidence before the grand jury, "established that when the defendant slashed the victim across the chest with a box cutter, the victim was not armed, and the defendant had no reason to believe that the victim was carrying a weapon or was about to use deadly physical force against him. See also, People v. Andrews, 24 AD3d 1184.

The People cite People v. Kearns, 56 AD3d 1947 but that case is concerned with proof at a non-jury trial concerning harassment charges against a father regarding his actions towards his teenage daughter, and so is not relevant to the issue herein. [*6]

Here, the defendant testified before the Grand Jury that his son and two other children were playing in a pool, which defendant was filling with water, and spraying the children at the same time. The children began to splash water out of the pool. The defendant told them to behave, knock it off, sit down and stop throwing water out of the pool. The other two children obeyed, but defendant's son told the defendant "no" and called him a "f-ing asshole." Defendant then told his son to watch his mouth, behave and sit down like the rest of the kids. The child said, "no" and called him the same thing again. The defendant "pulled him out of the pool and tapped him on the lip to let him know I was there." The defendant claimed there was no physical harm to the child by this action.

Thus, there was adequate proof before the Grand Jury that the defendant, a parent of a child under age 21, used non-deadly physical force upon the child "when, and to the extent that he reasonably believes it necessary to maintain discipline". Penal Law §35.10(1).

Therefore, the failure of the District Attorney to give the "necessary and appropriate" charge of justification requires that Count I (Attempted Assault Second Degree) be dismissed.

The remaining two counts both charge Endangering the Welfare of a Child, a class A Misdemeanor which flow from the charges initially filed in the Penn Yan Village Court.

Therefore, since the felony count has been dismissed for the reasons stated the Court hereby transfers the Indictment charging two misdemeanor counts of Endangering the Welfare of a Child back to the Village of Penn Yan Justice Court pursuant to NY Constitution, Article VI, §19(b). Matter of Clute v. McGill, 229 AD2d 70.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: December _____, 2008.

______________________________

W. Patrick Falvey

Yates County Judge