People v Jackson

[*1] People v Jackson 2004 NY Slip Op 51119(U) Decided on July 22, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK,

against

JONATHAN JACKSON, Defendant



1613/04

Bruce M. Balter, J.

Defendant's motion for inspection of the Grand Jury minutes and pursuant to CPL Articles 190, 200 and/or 210: dismissal or reduction of the charges contained in the Indictment on the grounds of inaccuracy and incompleteness in the charges of law; dismissal of the matter due to the improper and prejudicial conduct of the District Attorney; and dismissal of the matter due to the use of inadmissable hearsay evidence. In determining Defendant's motion, the Court has considered Defendant's Notice of Motion and Memorandum of Law, the People's Affirmation in Opposition and Memorandum of Law, Defendant's Reply, the Grand Jury minutes and the Grand Jury instruction.

Defendant's motion for inspection of the Grand Jury minutes is granted to the extent of the Court examining same.

PROCEDURAL HISTORY

On March 12, 2004, the People filed a complaint that charged Defendant with one count each of Criminal Possession of a Controlled Substance in the Seventh Degree, a violation of Penal Law §220.03 and a Class A Misdemeanor, and Criminal Possession of a Controlled Substance in the Third Degree, a violation of Penal Law § 220.16 (1) and a Class B Felony, for an incident which occurred on March 11, 2004, in the County of Kings. Defendant was arraigned in Part AR3 under Docket Number 2004KNO16726. The matter was presented to a Grand Jury on March 30, 2004. Defendant testified before the Grand Jury on April 8, 2004. On April 9, 2004, the Grand Jury voted an indictment charging defendant with Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fifth Degree and Criminal Possession of a Controlled Substance in the Seventh Degree.

In Defendant's Memorandum of Law, Defendant alleges that: before the Grand Jury, after he "stated that he needed to use the bathroom", the prosecutor told him there was 'no time' and then proceeded "in an obvious move to humiliate, heighten his physical discomfort and reduce his ability to concentrate, brazenly asked him if he wanted a glass of water ". (Lesher, Memorandum of Law, at 4). As such, Defendant further alleges: ''The physical discomfort and humiliation suffered by Mr. Jackson further impaired the Grand Jury proceeding. As we have recently seen in Abu Ghraib, physical humiliation is a way to profoundly undermine a person's sense of self and integrity. Obviously, the degree of physical humiliation imposed here was on a lesser level than in the prisons [*2]of Iraq, but the method still carries a whiff of the same stench" (Lesher, Memorandum of Law, at 6).

In response to Defendant's Motion, the People allege that: "Defendant was scheduled to testify on April 8, 2004 at 11:00 a.m. Defendant arrived early on April 8, 2004, and remained outside the Grand Jury Room for a period of 45 minutes to 1 hour. During this time, defendant was in close proximity to a public restroom (Gleeson, Aff. In Opp. ¶¶ 6-7). "As defense counsel, defendant and I were inside the Grand Jury anteroom, defendant stated, once, that he had to use the restroom. I informed him that there was no time in that the Grand Jury was waiting and had a scheduled break at 11:15 a.m. Additionally, I informed defense counsel that there were no public restrooms inside the Grand Jury. As is my habit and common practice to ask every defendant and defense attorney, if they would like a glass of water, I offered such to the defendant and defense counsel only" (Gleeson, Aff. In Opp. ¶¶10-11).

DISCUSSION

The purpose of a Grand Jury proceeding is solely to determine whether there is sufficient evidence to justify further criminal proceedings against the Defendant. People v. Calbud, Inc., 49 NY2d 389 (Ct. of App. 1980). The present issue at Bar is whether the prosecutorial improprieties, alleged by the Defendant in the People's presentation of defendant's case to the Grand Jury, rendered the resultant indictment fatally defective.

As a foundation, the Grand Jury performs the essential function of investigating criminal activity to determine whether sufficient evidence exists to accuse a citizen of a crime. See People v. Lancaster, 69 NY 2d 20 (Ct. Of App. 1986); See also People v. Calbud, Inc., 49 NY2d 389.

C. P. L.§ 190.25 (6) designates both the District Attorney and the Court as legal advisors to the Grand Jury. Though Grand Jury proceedings are conducted by the prosecutor alone; thus, the function confers upon the prosecutor broad powers and duties, as well as a wide discretion in presenting the People's case. See People v. DiFalco, 44 NY2d 487 (Ct. of App. 1978). As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus "charged with the duty not only to secure indictments but also to see that justice is done". People v. Lancaster, 69 NY2d 26. With this potent authority, moreover, comes responsibility, including "the prosecutor's duty of fair dealing". People v. Pelchat, 62 NY2d 104 (Ct. Of App. 1984).

It is well settled that the exceptional remedy of dismissal of an indictment pursuant to CPL § 210.35 (5) is warranted only where prosecutorial wrongdoing, fraudulent conduct, or errors potentially prejudice the ultimate decision reached by a Grand Jury. CPL § 210.35 (5) provides that a Grand Jury proceeding is defective when "the integrity thereof is impaired and prejudice to the defendant may result". The remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. See People v. DiFalco, 44 NY2d 487. Dismissal of indictments under CPL §210.35 should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. See People v. Huston, 88 NY2d 400 (Ct. of App. 1996). The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate [*3]prosecutorial influence or bias. Isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice. (People v. Huston at 409). Certainly, not every improper comment, elicitation of inadmissable testimony, impermissible question or mere mistake renders an indictment defective.

ANALYSIS

A thorough examination of the Grand Jury minutes reveals that the evidence adduced thereat is legally sufficient to establish the finding of each and every count of the indictment. See People v. Jennings, 69 NY2d 103 (Ct. of App. 1986). Because the evidence before the Grand Jury was legally sufficient to establish a prima facie case against the Defendant, the Court must determine whether the prosecutor's behavior and the statement made, contain the potential to prejudice the body's ultimate decision, and thus, render the indictment fatally defective.

After a careful examination of the Grand Jury minutes, the Court does not find that the inquiry made of the Defendant by the prosecutor was malicious in intent. Further, the Court finds that, at most, the comment was isolated in nature and that no pattern of bias or misconduct is evident which would impair the integrity of the grand jury and warrant a dismissal of the indictment.

Further in instructing the Grand Jury on the law, the prosecutor, inter alia, tracked, verbatim, the language of the relevant Penal Law provisions which set forth the elements of Criminal Possession of a Controlled Substance in the Third Degree, a violation of Penal Law § 220.16 (1), Criminal Possession of a Controlled Substance in the Fifth Degree, a violation of Penal Law § 220.06 (1), and Criminal Possession of a Controlled Substance in the Seventh Degree, a violation of Penal Law §220.03.

These instructions sufficiently "provide[d] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime and did not impair the integrity of the Grand Jury. See People v. Lyons, 738 NYS 2d 232 (App. Div. 2nd Dept. 2002). See also People v. Calbud, Inc., 49 NY2d 389 (Ct. of App. 1980).

Defendant raises an ancillary issue in his Reply, as to whether a quorum was present. Where no further inquiry was made as to whether a quorum was present while the Grand Jury deliberated and returned a true bill, and absent evidence that a proper quorum was present and voted at the renewed presentation of the case to the Grand Jury, the indictment is fatally flawed. People v. Jenkins, 185 Misc. 2d 319 (Sup. Ct. Kings Cty. 2000) , People v. Collier, 517 NYS 2d 224 (App. Div. 2nd Dept. 1987), People v. Infante, 511 NYS 2d 293 (App. Div. 2nd Dept. 1987).A careful review of the Grand Jury minutes reveals that a quorum was indeed present.

CONCLUSION

The Indictment was founded on accurate and complete charges of law presented to the Grand Jury. A dismissal of the matter due to improper and prejudicial conduct of the District Attorney is not evident; a dismissal based upon the admissibility of hearsay testimony is unsupported and without legal basis or merit. In sum, the integrity of the Grand Jury was not compromised and dismissal of the indictment is not warranted.

Defendant's motion to dismiss or reduce the indictment is denied in it's entirety.This constitutes the Decision and Order of the Court. [*4]

Dated: July 22, 2004

_______________________

BRUCE M. BALTER

J.S.C.