People v Senesi
Decided on April 9, 2012
Criminal Court of the City of New York, Kings County
The People of the State of New York,
Jason Senesi, Defendant.
For the People, Charles J. Hynes, District Attorney, Kings County, by Danielle Gough, Esq., Assistant District Attorney.
For the Defendant, Morris Shamuil, Esq.
John H. Wilson, J.
Defendant has made an oral request for this Court to review the Grand Jury minutes for sufficiency pursuant to CPL Sec. 210.20. The Court has reviewed the Grand Jury minutes dated October 25, 2011, November 3, 2011, and November 4, 2011.
For the reasons stated below, the Prosecutor's Information is dismissed, with leave to represent only those charges contained in said Prosecutor's Information.
Defendant was initially charged with Burglary in the Second Degree (PL Sec. 140.25), a Class C felony, and related charges. On October 25, 2011, the Complainant and a witness both testified before the Grand Jury of Kings County. The witness testified that on October 11, 2011, at approximately 10 AM, he observed four men "breaking into" an apartment at 1072 Bergen Street, Brooklyn, using a crowbar to force the door open. See, Grand Jury Minutes of October 25, 2011, p 5-6. Specifically, the witness indicated that he observed the Defendant take a television out of the apartment.See, Grand Jury Minutes of October 25, 2011, p 6. The [*2]Complainant then testified that when he returned to his apartment on October 16, 2011, "most of my electronics was gone" including "my tv."See, Grand Jury Minutes of October 25, 2011, p 9. The Complainant also testified did not give the Defendant "permission and authority to remove items" from his home.See, Grand Jury Minutes of October 25, 2011, p 10.
On November 3, 2011, Defendant waived immunity, and testified before the Grand Jury. See, Grand Jury Minutes of November 3, 2011, p 9. Defendant testified that he was asked by the owner of the property "to help him out a little bit." See, Grand Jury Minutes of November 3, 2011, p 10-11. Defendant testified that he was instructed by the owner to "have the lock changed" to 1072 Bergen Street. To that end, Defendant "stood at the door with the locksmith" while the locks were changed, "took one key to give the owner," and "paid the locksmith." See, Grand Jury Minutes of November 3, 2011, p 12-13. Further, he instructed a cleaning crew to "take the trash and rubbish that was in the common areas of the building." See, Grand Jury Minutes of November 3, 2011, p 17.
On November 4, 2011, Fire Marshall Brian Lavelle testified before the Grand Jury. He read a statement from Defendant, in which Defendant asserted that he was at 1072 Bergen Street on October 11, 2011 to change the locks and supervise a cleaning crew on the instructions of the owner of the property." See, Grand Jury Minutes of November 4, 2011, p 7.
Later that day, the People instructed the Grand Jury on the charges of Burglary in the Second Degree; Burglary in the Third Degree (PL Sec. 140.20), a Class D felony; Criminal Trespass in the Second Degree (PL Sec. 140.15), Criminal Mischief in the Fourth Degree, and Petit Larceny (PL Sec, 155.25), each a Class A misdemeanors; and Trespass (PL Sec. 140.05), a violation. See Grand Jury Minutes of November 4, 2011, p 11-13.
The Grand Jury voted a true bill as to the charges of Criminal Trespass in the Second Degree and Trespass, but stated they had no action on all other counts. See Grand Jury Minutes of November 4, 2011, p 15. The Assistant District Attorney then asked "is there any marshaling the evidence that would help you reach a decision in this case?" The Assistant did not receive an answer.See Grand Jury Minutes of November 4, 2011, p 15.
The prosecutor then informed the Grand Jury "the charges that you have voted on a true bill are misdemeanor charges...the District Attorney asks you to consider directing the District Attorney to return a Prosecutors information to the Criminal Court." The Grand Jury then "voted to move the case to Criminal Court." The Assistant then informed the Grand Jury that "this case is closed."See Grand Jury Minutes of November 4, 2011, p 16.
On December 1, 2011, the People filed a Prosecutor's Information, charging only the one count of Criminal Trespass in the Second Degree, and the one count of Trespass for which the Grand Jury had voted a true bill. [*3]
(A) CPL Sec. 190.60.
Under CPL Sec. 190.60, "(a)fter hearing and examining evidence...a grand jury may: 1. Indict a person for an offense...2. Direct the district attorney to file a prosecutor's information with a local criminal court...3. Direct the district attorney to file a request for removal to the family court...4. Dismiss the charge before it...5. Submit a grand jury report..."
Further, under CPL Sec. 190.75(1), the Grand Jury must dismiss a charge if "(a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime of or any other offense." In either case, 190.75(3) states that "(w)hen a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury."
In People v. Willkins, 68 NY2d 269, 274, 508 NYS2d 893, the Court of Appeals stated that "(t)he comprehensive statutory scheme regulating Grand Jury proceedings does not contemplate the termination of deliberations without some action by the Grand Jury." Wilkins made clear the general rule; "once a Grand Jury hears evidence in a case presented to it, the key factor in determining whether an unauthorized withdrawal of the case must be treated as a dismissal is the extent to which the Grand Jury considered the evidence and the charge." 68 NY2d at 274. See, also, People v. McCann, 169 Misc 2d 253, 254, 645 NYS2d 409 (Crim Ct, NY Cty, 1996) ( "(w)here, as here, the prosecution has withdrawn an essentially completed case from the Grand Jury prior to any action having been taken by that body, and thus thwarted the statutory scheme, the result will be deemed the functional equivalent of a dismissal under CPL 190.60(4).") 169 Misc 2d at 256; People v. Page, 177 Misc 2d 448, 677 NYS2d 689 (Crim Ct, Bx Cty, 1998).
In People v. Milton, 11 Misc3 1073(A), 816 NYS2d 699 (S Ct, Kings Cty, 2006) the court discussed the possible options the People have when the Grand Jury takes no action;
"First, inquire if the grand jurors have questions relating to the testimony,exhibits or the charge. Second, present additional evidence (citing Aarons),if available. Third, charge the grand jury on its duty to evaluate the evidence and come to a decision as authorized by CPL Sec. 190.60. Fourth, after following these steps, if the grand jury is still unable to reach a decision by a vote of 12, then request the Court's permission to withdraw the case and re-present it to another grand jury." 11 Misc 3d at 1073(A).
Here, the People fully presented their evidence to the Grand Jury. They then asked that jury to consider several felony, misdemeanor and violation charges. The jury did, and then voted a Prosecutor's Information as to one misdemeanor and one violation charge. At that stage, the [*4]Grand Jury had the choices of action available in CPL Sec. 190.60 as to the additional charges.
When the Grand Jury informed the Assistant that they had no action on all but two charges, the Assistant only asked the Grand Jury to consider sending the charges for which they voted a true bill to Criminal Court. The Grand Jury gave the People that instruction, at which point, the People withdrew the case from the Grand Jury's further consideration, and informed the Grand Jury that the matter was closed. The People then filed a Prosecutor's information in Criminal Court, which contained only the charges upon which the Grand Jury had voted a true bill.
While the People did inquire if the Grand Jury required any further information, and received no answer, the People never made any effort to charge the Grand Jury with their obligations under CPL Sec. 190.60 regarding the charges on which the Grand Jury had taken no action. Instead, the People accepted the Grand Jury's instruction to file a Prosecutor's Information on two of the charges presented, and withdrew the rest of the case, without the permission of the Court.
Thus, based upon the People's withdrawal of charges from the Grand Jury for which the Grand Jury had no action, without permission of the Court, after the Grand Jury had heard a complete presentation of the evidence and law, the charges for which the Grand Jury took no action are deemed to have been dismissed.[FN1]
(B) CPL Sec. 190.65.
Under CPL Sec. 190.65(1), "a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent..."
"A grand jury may indict only on the basis of competent legal evidence." See, People v. Cunningham, 88 Misc 2d 1065, 1081, 390 NYS2d 547 (S Ct, Bx Cty, 1976). Such evidence need not establish guilt beyond a reasonable doubt; CPL Sec. 190.65(1)(a) only "requires that the People present prima facie proof that the charged crime has been committed by defendant." See, People v. Gordon, 88 NY2d 92, 95, 643 NYS2d 498 (1996). To establish a prima facie case, the evidence must include proof "which encompasses the requisite culpable mental state." See, People v. Delameter, 96 AD2d 629, 464 NYS2d 878 (3d Dept, 1983).
The evidence before the Grand Jury will be considered sufficient "when the sum of the [*5]competent and admissible evidence, if unexplained and uncontradicted, would warrant a conviction after trial." See, People v. Williams, 110 AD2d 798, 799, 487 NYS2d 862 (2d Dept, 1985), app den, 66 NY2d 615, 494 NYS2d 1038 (1985). "That...incompetent testimony may be elicited before (the Grand Jury) is not surprising. But they must not indict on such testimony - they can only indict upon legal evidence showing the commission of crime, and which, unexplained and unanswered, affords reasonable ground for charging such crime on the defendants." See, People v. Grout, 85 Misc 570, 573, 147 NYS 591 (S Ct, Kings Cty, 1914).
On a motion to dismiss, the "sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained or uncontradicted, would warrant conviction by a petit jury." See, People v. Jensen, 86 NY2d 248, 251, 630 NYS2d 989 (1995). See, also, People v. Hyde, 302 AD2d 101, 104, 754 NYS2d 11 (1st Dept, 2003), lv to app den, 99 NY2d 655, 760 NYS2d 119 (2003).
In the instant matter, the evidence submitted to the Grand Jury was legally insufficient to establish a prima facie case for the charges which were true billed.
A person is guilty of Trespass in the Second Degree under PL Sec. 140.15, "when he knowingly enters or remains unlawfully in a dwelling." PL Sec. 140.05 is satisfied "when he knowingly enters or remains unlawfully in or upon premises." In each instance, Defendant must have the "requisite culpable mental state" to be guilty of the charges. That "culpable mental state" is demonstrated when Defendant is aware that he "has no license to enter the premises and even a mistaken belief of the right to enter precludes a finding that there was an unlawful entry." See, People v. Powell, 180 Misc 2d 627, 632, 691 NYS2d 263 (S Ct, Bx Cty, 1999).
In this case, Defendant testified that he was at 1072 Bergen Street at the behest of the owner of the property.See, Grand Jury Minutes of November 3, 2011, p 10-11. Further, this testimony was supported by the statement Defendant gave to the Fire Marshall, which was also presented to the Grand Jury. See, Grand Jury Minutes of November 4, 2011, p 7. This testimony was unexplained and unanswered by the People.
Therefore, even when the Grand Jury presentation is viewed in a light most favorable to the People, the uncontroverted evidence given by Defendant established a lack of mental culpability. This circumstance renders the evidence presented by the People insufficient to sustain their burden of providing the Grand Jury with a prima facie case.
The Prosecutor's Information is dismissed, with leave to represent only those charges contained in the Prosecutor's Information.[FN2] [*6]
This shall constitute the opinion, decision, and order of the Court.
Dated: Brooklyn, New YorkApril 9, 2012
_______________________________Hon. John H. Wilson, JCC
Footnote 1: In the present case, "the forum shopping concerns discussed in Wilkins are simply not present" since the Prosecutor's Information only contains the charges for which the Grand Jury voted a true bill. See, People v. Aarons, 2 NY3d 547, 552, 780 NYS2d 533 (2004); People v. Whatkey, 31 Misc 3d 1242(A), 932 NYS2d 762 (Crim Ct, Kings Cty, 2011)
Footnote 2: Obviously, the People cannot represent the charges initially presented to the Grand Jury, for which the Grand Jury took no action, based upon the dismissal of these charges, as explained in Part (A), above.