People v Carson
Annotate this CaseDecided on December 12, 2013
County Court, Sullivan County
The People of the State of New York,
against
Michael Carson, Defendant.
140S-13
Tim L. Havas, Esq.
Sullivan Legal Aid Panel
11 Bank Street
Monticello, NY 12701
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
414 Broadway
Monticello, NY 12701
By: Joey Z. Drillings, ADA, of counsel
Frank J. LaBuda, J.
This matter comes before the Court by Order to Show, by Defendant, for an order dismissing the indictment for the above-captioned matter. The People have submitted an affirmation in opposition. By Indictment No.140S-13 Defendant is charged with Rape in the First Degree (one count) and Sexual Abuse in the First Degree (one count) stemming from a July 26, 2012, incident in which the victim alleges Defendant engaged in sexual intercourse and contact with her while she was unable to communicate willingness due to her consumption of alcohol.
Defendant states that prior to the November 27, 2013, Huntley hearing, the People provided him with Rosario material, which included 10 pages of transcript from the Grand Jury testimony of Detective Brendan Pavese at which time Defendant became aware that one of the arresting officers testified before the grand jury that Defendant was administered a polygraph examination at the request of the police as part of the investigation, and viewed a video of Defendant's interrogation from which they were further informed that the police administered a polygraph to Defendant. Defendant argues that introduction of evidence that a polygraph was [*2]used during the investigation was in error and unduly prejudiced the grand jury proceedings.
The People argue that with respect to the video played for the grand jury, none of those excerpts referred to the polygraph examination, Detective Pavese was only asked to identify Defendant on the video, and after three segments of video were played, the People elicited testimony regarding the certified lab results. The People do not deny there was mention of the polygraph examination during testimony by Detective Pavese. When the grand jurors had an opportunity to ask question at the conclusion of the proceeding, a juror asked about the results of the polygraph, to which the assistant District Attorney responded that the result were "inadmissible." The prosecutor repeated that the polygraph results were inadmissible because it is not a certified machine.
The law is clear that polygraph examinations and the results thereof are inadmissible at trial and grand jury. People v. Shedrick, 66 NY2d 1015 [1985]. When the record establishes that a prosecutor not only initiates and intertwines the testimony regarding a polygraph and places emphasis on the probable outcome of the test, a court may reasonably conclude a defendant has been unduly prejudiced. People v. Lucatuorto, 174 Misc 2d 670, 672 [Onondaga Co. Ct. 1997]. Eliciting testimony regarding a detective's training as a polygraphist is also unduly prejudicial, as is testimony from a detective that in his opinion a defendant refused to take a polygraph because she was lying. Id., at 674.
If overall, however, the conduct of the Grand Jury proceeding is patently fair and a detective's reference to a polygraph is isolated, a court may refuse to dismiss an indictment. People v. Fancher, 267 Ad2d 770, 771 [3rd Dept. 1999]. Dismissal of an indictment for alleged improprieties during the grand jury proceeding is considered an extraordinary remedy, which requires that the acts complained of were deliberate and not isolated. People v. Jones, 239 Ad2d 234 [1st Dept. 1997]. Therefore, it is incumbent upon a court to consider the totality of the presentation. People v. Fancher, 267 Ad2d at 771. When there is legally sufficient and admissible evidence to sustain the founts of an indictment, an isolated impropriety doe not affect the integrity of the grand jury to warrant dismissal. People v. Miller, 110 AD3d 1150 [3rd Dept. 2013]; see also, People v. Elioff, 110 AD3d 1477 [4th Dept. 2013]; People v. Shol, 100 AD3d 1461 [4th Dept. 2012]; People v. Arbas, 85 AD3d 1320 [3rd Dept. 2011].
In the case at bar, the transcript unequivocally indicates an isolated reference to a polygraph, unsolicited by the prosecutor. Fancher, supra. The prosecutor explained to the grand jury that the polygraph was mentioned for the sole purpose of showing there was a gap in the questioning on the video for a legitimate investigatory reason—that Defendant was taken for a polygraph, and not to another location to be threatened, coerced or otherwise mistreated. In addition, as the People point out, Detective Pavese, subsequent to his mentioning the polygraph, testified that Defendant was not arrested after speaking with the police, leaving an inference that he might have passed the polygraph, not failed it, as Defendant argues.
The grand jury testimony and record before the Court indicates there was legally [*3]sufficient and admissible evidence to sustain the counts in the indictment. Miller, supra. The proceeding, overall, was fair, and the Court will not dismiss the within indictment due to an isolated impropriety in which a detective testified that Defendant was taken for a polygraph during the course of an investigation, especially considering his mention of the polygraph was in the context of providing the chronology for the period during which Defendant was being questioned. This is not a case in which the prosecutor deliberately manipulated the witness' testimony to elicit discussion of the polygraph, or even asked any follow-up questions regarding the polygraph examination. Jones, supra. To the contrary, the grand jury minutes indicate a passing reference to a polygraph examination to explain a gap in time on a video recorded police interview.
Based on the foregoing, it is
ORDERED that Defendant's motion to dismiss Indictment #140S-13 is denied.
This shall constitute the Decision and Order of this Court.
DATED:December 12, 2013
Monticello, New York
____________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
