People v Graham

[*1] People v Graham 2012 NY Slip Op 52431(U) Decided on January 23, 2012 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Fabian Graham, Defendant.



2012KN068330



For the People, Charles J. Hynes, District Attorney, Kings County, by Grace Brainard, Esq., Assistant District Attorney.

For the Defendant, Damien Brown, 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 August 16, 2012, August 20, 2012, August 23, 2012 and August 24, 2012.

For the reasons stated below, the charge of Menacing in the Second Degree is dismissed, with leave to represent that charge, as well as the previously dismissed charge of Criminal Possession of a Weapon in the Fourth Degree.

FACTUAL STATEMENT

Defendant was initially charged with Rape in the First Degree (PL Sec. 130.35), a Class B felony, and related charges regarding an incident alleged to have occurred on April 21, 2012. Defendant was also charged with Intimidating a Witness in the Third Degree (PL Sec. 215.15), a Class E felony for an incident alleged to have occurred on July 27, 2012.

On August 16, 2012, the Complainants both testified before the Grand Jury of Kings [*2]County. The first witness testified that on April 21, 2012, at approximately 11:30 PM, she was present in Defendant's apartment at 1470 Sterling Place, Brooklyn, New York. She states that Defendant gave the witness alcohol, "shut the door...locked the door...pushed me onto the bed, and then he pulled off my clothes...put his knee into my leg he was holding my hands, and he inserted his penis into my vagina." See, Grand Jury Minutes of August 16, 2012, p 5-8.

The second witness, the father of the first witness, testified on the same day. That witness indicated that on July 27, 2012 at approximately 5:00 PM the Defendant came to the door of the witnesses' apartment in 1470 Sterling Place, Brooklyn, New York.The witness stated that the Defendant told him to "call his daughter out," and that he "had a knife in his hand." See, Grand Jury Minutes of August 16, 2012, p 13. The witness "tried to close the door on him, and (Defendant) put his foot and blocked me from closing my door."See, Grand Jury Minutes of August 16, 2012, p 13.

On August 20, 2012, Defendant waived immunity, and testified before the Grand Jury. See, Grand Jury Minutes of August 20, 2012, p 9. Defendant provided an alibi for the incident which allegedly occurred on April 21, 2012 , and stated that he "never had sex" with that complainant. See, Grand Jury Minutes of August 20, 2012, p 11-12. Defendant also testified that on July 27, 2012, he "approached" the father of the first complainant, "to let him know that...you need to talk to your daughter. Slammed the door in my face." See, Grand Jury Minutes of August 20, 2012, p 12. Further, he stated that "The cops were called...(f)alse reports were made." See, Grand Jury Minutes of August 20, 2012, p 12.

On August 20, 2012, Defendant proffered two witnesses in support of his alibi, both of whom the Grand Jury voted to hear testify. See, Grand Jury Minutes of August 20, 2012, p 22-23. The first, Defendant's girlfriend, indicated that on April 21, 2012, she arrived at 1407 Sterling Place "between 8 and 10:00 PM," and that Defendant was home when she arrived. See, Grand Jury Minutes of August 20, 2012, p 27. Her belief was that Defendant had been at work that day. See, Grand Jury Minutes of August 20, 2012, p 26. Defendant's employer then testified that on April 21, 2012, Defendant's time sheet indicated that he worked that day from approximately 8:15 AM to 4:45 PM. See, Grand Jury Minutes of August 20, 2012, p 32-33.

Later that day, the People instructed the Grand Jury on one count of Rape in the First Degree. See Grand Jury Minutes of August 20, 2012, p 45. The Grand Jury voted a No True Bill as to this charge. See Grand Jury Minutes of August 20, 2012, p 46. The Assistant District Attorney indicated to the members of the Grand Jury that she would come back at a later time to present additional charges." See Grand Jury Minutes of August 20, 2012, p 46-47.

On August 23, 2012, the Assistant District Attorney presented the following additional charges to the Grand Jury; one count of Rape in the Third Degree(PL Sec. 130.25), a Class E felony; one count of Sexual Abuse in the First Degree PL Sec. 130.65), a Class D felony; one count of Sexual Abuse in the Third Degree (PL Sec. 130.55), a Class B misdemeanor; one count [*3]of Sexual Misconduct (PL Sec. 130.20), a Class A misdemeanor; one count of Unlawfully Dealing with a Child in the First Degree (PL Sec. 260.20), a Class A misdemeanor; one count of Endangering the Welfare of a Child (PL Sec. 260.10), a Class A Misdemeanor; one count of Menacing in the Second Degree (PL Sec.120.14) a Class A misdemeanor; one count of Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 256.01), a Class A misdemeanor; two counts of Menacing in the Third Degree (PL Sec. 120.15), a Class B misdemeanor; and two counts of Harassment in the Second Degree (PL Sec. 240.36), a violation. See Grand Jury Minutes of August 23, 2012, p 10-14.

After receiving the charge, one of the Grand Jurors stated "you charging for Possession of a Weapon but I never hear about any weapon that he has." See Grand Jury Minutes of August 23, 2012, p 15. The Assistant reminded the juror that "(w)hile it is your recollection that controls and not mine, it is my recollection that on August 16, 2012, you heard from the complainant's father...and he told you that the defendant approached him near his apartment and had a knife." See Grand Jury Minutes of August 23, 2012, p 15.

When the Grand Jury initially announced its vote, there was some confusion over whether the charges for which a true bill was voted applied to the April 21, 2012 incident, or the July 27, 2012 allegations. See Grand Jury Minutes of August 23, 2012, p 17-19. The jurors asked for clarification of several of the charges, and also had several factual questions for the assistant. See Grand Jury Minutes of August 23, 2012, p 19-21. After re-reading the charge of Menacing in the Second Degree and Unlawfully Dealing with a Child in the First Degree at the request of the Grand Jury, the Assistant left the Grand Jury to vote. See Grand Jury Minutes of August 23, 2012, p 22-23.

The Grand Jury then voted a no true bill as to all charges, except one count each of Menacing in the Second Degree, Menacing in the Third Degree, and Harassment in the Second Degree.For these three counts, all relating to the July 27, 2012 incident, the Grand Jury voted a true bill. See Grand Jury Minutes of August 23, 2012, p 25-27.

On August 24, 2012, since all charges for which a true bill was voted were misdemeanors, the Grand Jury voted to move the case to Criminal Court. See Grand Jury Minutes of August 24, 2012, p 5.

On September 6, 2012, the People filed a Prosecutor's Information with Criminal Court, charging one count of Menacing in the Second Degree, one count of Menacing in the Third Degree, and one count of Harassment in the Third Degree.

LEGAL ANALYSIS

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..." [*4]

"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).

Under CPL Sec. 210.20(1)(a), the Court is empowered to dismiss a "defective" indictment, while CPL Sec. 210.20(1)(b) states that an indictment may be dismissed if "the evidence before the Grand Jury was not legally sufficient."

The evidence before the Grand Jury will be considered sufficient "when the sum of the competent and admissible evidence...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... 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...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 sufficient to support the counts of Menacing in the Third Degree and Harassment in the Second Degree. Thus, as to these counts of the Prosecutor's Information, this Court finds no impropriety or insufficiency in the presentation of this matter and the charges given to the Grand Jury.

However, the true bill voted by the Grand Jury as to Menacing in the Third Degree is inconsistent with the dismissal of Criminal Possession of a Weapon in the Fourth Degree,rendering the true bill voted for that count of Menacing repugnant and insufficient.

A person is guilty of Menacing in the Second Degree under PL Sec. 120.14, "when (1) he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a...firearm." Further, under PL Sec. 265.01, a defendant is guilty of Criminal Possession of a Weapon in the Fourth Degree "when (2) he possesses any...dangerous knife...or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another." [*5]

There is an identical element of proof, common to both charges; in order to display a weapon, one must possess that same weapon. See, CJI, Vol. II, Sec. 120.14; CJI Vol. III, Sec. 265.01.

In this case, the father of the first witness testified that the Defendant came to the door of the witnesses' apartment with "a knife in his hand." See, Grand Jury Minutes of August 16, 2012, p 13. Yet, the Grand Jury voted to dismiss the charge of Criminal Possession of a Weapon in the Fourth Degree. Therefore, even when the Grand Jury presentation is viewed in a light most favorable to the People, the true bill for Menacing in the Second Degree is inconsistent with the no true bill voted for Criminal Possession of a Weapon in the Fourth Degree.

"The theory of repugnancy is that a defendant should not be convicted for a crime for which the jury has found that the defendant has not committed an essential element." People v. Lopez, 14 Misc 3d 1216(A), p 1, citing People v. Tucker, 55 NY2d 1, 6, 447 NYS2d 132 (1981). Tucker made clear that "(a) verdict is repugnant when a jury has acquitted a defendant of one charge and such decision has negated an essential element of another charge for which the jury found the defendant guilty." See, People v. Seifert, 188 Misc 2d 263, 265, 727 NYS2d 607 (Cty Ct, Nassau Cty, 2001), citing Tucker, supra.

However, this rule applies to the verdict of a petit jury after trial. In fact, on the trial court level, "there have been conflicting opinions...as to whether the concept of repugnancy applies to Grand Jury proceedings." See, Lopez, 14 Misc 3d 1216(A), p 1 (citations omitted).

In Lopez, the Court found that since "the consequences of inconsistent Grand Jury decisions are distinguishable from those of petit jury verdicts...repugnancy does not apply to Grand Jury votes." See, 14 Misc 3d 1216(A), p 2. In particular, Lopez noted that "there is no double jeopardy provision under the law in the Grand Jury context. Rather, the CPL permits the People to request permission from the court to resubmit charges to the same or another Grand Jury if a Grand Jury dismisses charges." 14 Misc 3d 1216(A), p 2, citing CPL Sec. 190.75(3).See, also, People v. Lin, 169 Misc 2d 689, 692, 647 NYS2d 411 (S Ct, Kings Cty, 1996) ("votes by a grand jury are not subject to the same analysis as verdicts by petit juries").

While there is much logic in the approach taken by the Lopez and Lin courts, under the facts presented here, this Court is persuaded by the holding in People v. Cummings, 155 Misc 2d 970, 590 NYS2d 1016 (S Ct, Kings Cty, 1992), and the cases that have followed Cummings. The theory of repugnancy will be applied to this case.

In Cummings, though that court noted that "no conclusive authority on this point has been discovered," the "logical impossibility" of the "finding of the Grand Jury...did not support a true bill...(and)...was therefore internally self-contradictory both logically and pursuant to the charge' and truly repugnant.'" 155 Misc 2d at 972 (citations omitted). Thus, "the failure to find a true bill as to...possession negatives' one of the essential elements of the crimes upon which a true bill has been returned." 155 Misc 2d at 973 (citations omitted). [*6]

Here, the Defendant cannot have menaced the complainant with a weapon, yet not have been in possession of said weapon. The failure to find a true bill as to Criminal Possession of a Weapon "negatives" the charge of Menacing in the Second Degree. This circumstance renders the evidence presented by the People insufficient to sustain their burden of providing the Grand Jury with a prima facie case as to the charge of Menacing in the Second Degree.

This finding is supported by the confusion expressed by the Grand Jurors after the Assistant District Attorney attempted to clarify the charges for which a true bill had been voted. One of the Grand Jurors claimed that they "never hear about any weapon that (defendant) has," and had to be reminded that "you heard from the complainant's father...and he told you that the defendant approached him near his apartment and had a knife." See Grand Jury Minutes of August 23, 2012, p 15.

Further, there was some confusion over whether the charges for which a true bill was voted applied to the April 21, 2012 incident or the July 27, 2012 allegations. See Grand Jury Minutes of August 23, 2012, p 17-19. The jurors then asked for clarification of several of the charges, including, significantly, the charge for Menacing in the Second Degree. See Grand Jury Minutes of August 23, 2012, p 22-23.

Under these facts, "the applicable inquiry must be whether the Grand Jury was confused so that a resubmission of the charges to the Grand Jury would be appropriate or was their vote an outright rejection of the People's proof." See, Seifert, 188 Misc 2d at 267. In reaching this conclusion, the Seifert court followed Cummings, and ruled that "a repugnant indictment puts into issue the sufficiency of the evidence presented to the Grand Jury so that a repugnant vote by the Grand Jury is a sufficiently egregious defect' within the meaning of CPL Section 210.20(1)(a) to warrant dismissal." 188 Misc 2d at 267, citing Cummings, 155 Misc 2d at 974.

Following Cummings and Seifert, this Court finds that the confusion exhibited by the Grand Jury regarding the applicable charges renders the verdict repugnant, and as such, is a sufficiently egregious defect as to warrant dismissal.

However, in its discretion, rather than dismiss the Prosecutor's Information in its entirety, this Court will allow the People to resubmit the two charges the Grand Jury could not reconcile; Menacing in the Second Degree, and Criminal Possession of a Weapon in the Fourth Degree. See, Lopez 14 Misc 3d 1216(A), p 2, citing CPL Sec. 190.75(3) ("CPL permits the People to request permission from the court to resubmit charges to the same or another Grand Jury if a Grand Jury dismisses charges"). See, also, People v. Martinez, 164 Misc 2d 314, 317, 624 NYS2d 783 (S Ct, Queens Cty, 1995) ("It is for the court, and not the District Attorney, to determine whether a repugnancy exists and, if so, whether that repugnancy warrants resubmission") (citations omitted).

Therefore, the charge of Menacing in the Second Degree is dismissed from the Prosecutor's Information, with leave to represent the charge of Menacing in the Second Degree, as well as the previously dismissed charge of Criminal Possession of a Weapon in the Fourth [*7]Degree.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkJanuary 23, 2012

_______________________________Hon. John H. Wilson, JCC