People v Spencer

[*1] People v Spencer 2012 NY Slip Op 50222(U) Decided on February 9, 2012 County Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
County Court, Sullivan County

People of the State of New York,

against

Glynn Spencer, Defendant.



190-2011



Glenn Kroll, Esq.

P.O. Box 10

Bloomingburg, NY 12721

Attorney for Defendant

Hon. James R. Farrell

Sullivan County District Attorney

LHC Sullivan County Courthouse

414 Broadway

Monticello, NY 12701

By: Meagan K. Galligan, ADA, of counsel

Attorney for the People

Frank J. LaBuda, J.

Defendant moves to dismiss Indictment #190-2011 on the ground that the instructions to the Grand Jury were insufficient.

The People submit an affirmation in opposition.

Defendant submits a reply affirmation.

Defendant was charged by Indictment #190-2011 dated September 14, 2011 with three counts; one count of criminal sale of a controlled substance in the third degree, a class B felony, for selling a narcotic drug, oxycodone; one count of criminal possession of a controlled substance in the third degree, a class B felony, for possessing a narcotic drug, oxycodone, with the intent to sell; one count each of tampering with physical evidence, obstructing governmental administration in the second degree and endangering the welfare of a child.

Defendant's argument herein does not find fault in the evidence presented to the Grand Jury by the People or the charging instructions given to the Grand Jury in regard to the charged offenses. Instead, the defendant argues that the People did not address the more appropriate and much less serious crimes enumerated in any of the sections of Article 178 of the Penal Law and by failing to do so the defendant was not treated fairly and the Grand Jury charge was legally insufficient.

This Court has reviewed the minutes of the Grand Jury presentation herein and finds that the People provided a factually sufficient basis for the indictment and accurately charged the Grand Jury upon the applicable law for each of the counts.

Defendant attacks the choice of the People to indict him on two class B felonies under Article 220 of the Penal Law instead of the crimes enumerated in Article 178, which range from a high of a class C felony down to a class A misdemeanor, as a failure to charge appropriate but lesser offenses of the same conduct.

Article 220 offenses deal with controlled substances; drugs found, in the main, in schedule I, II, II, IV and V of Public Health Law § 3306. The specific counts for which the defendant is charges herein are entitled sale (Count 1) and possession (Count 2) of a controlled substance.

On the other hand, Article 178 offenses deal with prescription medications and prescriptions.

It is accurate that some substances under Article 178 may be controlled substances, for example oxycodone, as the drug choice herein, but the term prescription medications also covers medications that are not controlled substances, for example antibiotics.

Defendant's argument herein is that the oxycodone pills that were allegedly possessed and sold by him are Article 178 medication as well as Article 220 controlled substances and fairness requires the People to instruct the Grand Jury regarding both Article 220 and 178 offenses.

The defendant cites no authority for his arguments except compelling logic and fairness to the defendant.

The defendant is, however, in error.

"Generally, the District Attorney is the prosecutorial officer with the responsibility to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he serves." People v DiFalco, 44 NY2d 482 (1978). See also, County Law §700(1). [*2]

The District Attorney, in fulfilling his statutory duty, has broad discretion to determine when and by what means he may prosecute a criminal offender. People v Urbaez, 10 NY3d 773 (2008); People v DiFalco, supra.

"The People may seek an indictment for the highest crime that the evidence supports." People v Caster, 33 Misc 2d 198 (Cty, Ct., Monroe Cty., 2011).

The District Attorney has the sole discretion when a prosecution shall be pursued or dropped and what offenses shall be pursued. People v Zimmer, 51 NY2d 390 (1980).

The defendant is correct in that the District Attorney must be fair and even handed in presenting his case to the Grand Jury but that fairness goes to his conduct and candor in presenting the evidence and the law not which crimes or offenses the prosecutor chooses to seek an indictment for.

A Grand Jury is not an adversarial proceeding except to the limited extent that a defendant may testify and request certain witnesses be called on his behalf. People v Brewster, 63 NY2d 419 (1984); CPL §190.50 (5)(6). The defendant has no right to request what offenses will be submitted to a Grand Jury.

The District Attorney is a public officer and he owes a duty of fair dealing with the accused and the courts. People v Pelchat, 62 NY2d 97 (1984).

Also, a prosecutor's role in the Grant Jury is not adversarial but to elicit facts so the jurors may investigate and make a determination whether the accused shall be charged and for which offenses in a fair and impartial manner. People v Jones, 157 Misc 2d 45 (Sup. Ct., Queens Cty., 1993).

The defendant herein is, in essence, arguing that the People

must instruct the Grand Jury on any lesser included offenses to the offenses the prosecutor seeks an indictment for.

This argument is in error. The District Attorney may seek indictment for offenses of his choosing and for the highest crimes the evidence supports and not for less severe offenses or the lesser included offenses of the higher crimes.[FN1]

Arguments regarding whether Article 178 offenses are, in fact, lesser included offenses to the crimes charged herein is a question for trial. [*3]

However, this Court, if requested to charge the petit jury at trial with a lesser included offense including a violation of Article 178, must first defer to the trial testimony of the witnesses, both prosecutorial and defense, and thereafter determine whether the evidence supports such a lesser included offense jury charge. The defendant's application is premature under the current state of the legal sufficiency of the Grand Jury proceedings.

Based upon the above, it is

ORDERED, that defendant's motion to dismiss the Indictment is denied.

This shall constitute the Decision and Order of this Court.

DATED: February 9, 2012

Monticello, New York

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate Footnotes

Footnote 1: For example, there is no requirement for the prosecutor to submit the offenses DWAI (V & T 1192(1), a violation under the law, when seeking an indictment for the DWI felony or highest charge of V & T 1192(2)and/or(3).