People v Brown

[*1] People v Brown 2009 NY Slip Op 51202(U) [23 Misc 3d 1140(A)] Decided on June 15, 2009 Supreme Court, Kings County McKay, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2009
Supreme Court, Kings County

The People of the State of New York

against

Kareen Brown, Defendant



1094-09



For the People: Assistant District Attorney Bernarda A. Villalona, Kings County

For the Defense: Ezra C. Levy, Esq., Legal Aid Society

Joseph Kevin McKay, J.

The defendant is charged in a multi-count indictment with attempted murder in the second degree and several related counts based on a shooting which occurred on December 24, 2008 in a barber shop located at 898 Broadway in Kings County.

On consent the Court has inspected the Grand Jury minutes in this action. Based on this review the Court finds that the evidence adduced is legally sufficient to support all counts of the indictment. See People v. Bello, 92 NY2d 523 (1998); People v. Jennings, 69 NY2d 103, 115 (1986).Additionally, the assistant district attorney adequately charged the Grand Jury on the applicable law. People v. Calbud, Inc., 49 NY2d 389 (1980).

In connection with this review the Court also entertained a related defense motion dated April 22, 2009 claiming prosecutorial overreaching in the Grand Jury during defendant's testimony, which it is argued caused a violation of defendant's right to testify in the Grand Jury under CPL 190.50 and caused an impairment of the integrity of the Grand Jury proceedings [CPL 210.35(5)]. The Assistant District Attorney has served and filed written opposition papers dated May 29, 2009 consisting of two affirmations and a memorandum of law.

Having reviewed the Grand Jury minutes in light of the moving and opposition papers, I have concluded that defendant was afforded a sufficient opportunity to testify, that the prosecutor's conduct toward the defendant in the Grand Jury did not in any cognizable way diminish defendant's rights nor impair the integrity of the proceedings. In particular, the defense did not establish that there was any relevant non-hearsay testimony of significance that defendant was prevented from stating in the Grand Jury. See People v. Smith, 84 NY2d 998 (1994).

Although the record is not free from ambiguity, it appears from the Grand Jury transcript that defendant was merely trying to testify to what the police told him he was charged with in order better to explain his denials. In other words, if defendant was innocent of these shootings and was elsewhere at the time, as he declared, he would necessarily have to be given information about the [*2]crime by a separate source. This would not have constituted inadmissible hearsay because it would not have been offered for its truth, but simply that it was said. Its relevance is plain: that it provided information needed for defendant to refute the allegations. Nevertheless, my reading of the Grand Jury transcript persuades me that defendant was still able to explain his denials and present his alibi sufficiently during his testimony, despite the prosecutor's erroneous hearsay rulings.

The Court, however, takes this opportunity to caution the People that because not all statements from others constitute inadmissible hearsay, blanket exclusion should be avoided and a more nuanced ruling made in some cases — possibly aided by a conference between counsel and, if appropriate, defendant, outside the presence of the Grand Jury. Secondly, while purporting to enforce the evidence rules against hearsay in regard to defendant's testimony, the prosecutor should be at least equally concerned about avoiding indirect but potentially pernicious hearsay from police witnesses. For example, to allow, as was done in this presentation, the arresting officer to testify that he developed a "suspect", namely, the defendant, during the course of his investigation, and further that after speaking with the victim he placed defendant under arrest, (Grand Jury Transcript, February 3, 2009 at 22 - 23) was improper. Both statements masked inadmissible hearsay. See People v. Holt, 67 NY2d 819, 821 (1986). However, in light of the rest of the evidence before the Grand Jury, especially the complainant's testimony concerning his familiarity with defendant as well as his viewing a line-up, I conclude these statements were not fatal to the proceedings.

Finally, with respect to the SECOND COUNT (Penal Law § 120.10-1), it is difficult to determine with precision at this early stage in the proceedings - - even with complainant's hospital records, which were introduced in the Grand Jury - - whether defendant has suffered "serious physical injury" (Penal Law § 10.00-10). Nevertheless, in view of the multiple gunshot wounds he received to different parts of his body, his placement in SICU at Kings County Hospital, if only for a day or so, and his inability to walk because of the "dropped foot" and pain, which explained his use of a wheel chair in the Grand Jury over a month after the shooting, I also sustain that count at this time.

Accordingly, there is no reason to dismiss or reduce any of the counts in this indictment.

IT IS SO ORDERED.

_____________________________

J.S.C.