People v Gonzalez

[*1] People v Gonzalez 2005 NY Slip Op 51829(U) [9 Misc 3d 1128(A)] Decided on November 10, 2005 Supreme Court, Kings County McKay, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2005
Supreme Court, Kings County

The People of the State of New York,

against

Enrique Gonzalez, Defendant.



6001-04

Joseph Kevin McKay, J.

By notice of motion dated May 24, 2005, defendant seeks dismissal of this indictment pursuant to CPL 210.35 (5), based on impairment of the integrity of the Grand Jury proceedings. The prosecu-tion's original opposition papers, dated June 23, 2005, relied solely on the authority of CPL 190.75 (3). Defendant's reply papers, dated July 19, 2005, amplify the grounds for the motion considerably after receiving full discovery of what actually happened in the Grand Jury and before the Grand Jury Justice in this matter. The District Attorney submitted surreply papers dated August 18, 2005, claiming that the action taken by the Grand Jury was justified not only by the statute, but also by People v Montanez, 90 NY2d 690, 694 ( 1997 ).

The facts of the Grand Jury presentations themselves in this case are not in dispute, as recorded in the transcripts made available by the District Attorney to the Court and the defense. After hearing conflicting testimony from several police and defense witnesses, including defendant, on September 23, 2004, the Grand Jury voted "No True Bill" on all counts then submitted to it (Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree and Unlawful Wearing of a Body Vest) which action was brought to the attention of the Night Court Judge that same evening, resulting in the dismissal of the felony complaint. On the following day a Grand Juror approached the Warden and was then taken to the Grand Jury Justice with the Foreman and the Assistant District Attorney who had presented the case. After hearing from the two Grand Jurors, the Justice authorized the taking of a second vote before the same Grand Jury because it appeared that the Grand Jurors did not vote separately on each count. This failure, the prosecution continues to claim, violated Grand Jury procedures in a sufficiently serious manner so as to render a re-vote proper.

No objection has been raised to this Court's hearing of this motion, which necessarily involves a review of the merits of the previous ex parte Order of another Justice of concurrent jurisdiction. Since this procedure is akin to a review of a search warrant authorized by another Justice, this Court has authority and discretion to hear and decide the merits of this motion and there is no violation of the "law of the case" doctrine in doing so. [FN1]

The Grand Jury, after hearing the prosecutor's biased and partially inaccurate marshaling of the evidence [FN2] and an unsolicited recharge on the law, took a second vote. The results of this vote were again announced to the Assistant as a "No True Bill" for Criminal Possession of a [*2]Weapon in the Second and Third Degree, but a "True Bill" for Criminal Possession of a Weapon in the Fourth Degree and Unlawful Wearing of a Body Vest. When the Assistant asked about the vote twice, the Foreman replied that more deliberation was needed. More colloquy followed, after which the Assistant left and upon her return was advised of a "No True Bill" for Criminal Possession of a Weapon in the Second Degree and a "True Bill" for the other three charges. This was later reported to the Grand Jury Justice. On September 28, 2004 the Assistant presented additional evidence in this case to the same Grand Jury and obtained a "True Bill" for another count of Criminal Possession of a Weapon in the Third Degree, pertaining to the same firearm, as an enhanced count, based on defendant's prior conviction, which was then added to this indictment.

The crux of defendant's motion is that this resubmission was improvidently ordered because there is no legal tenet specifying how the Grand Jurors should conduct their voting. No authority for the requirement of a separate vote for each count by the Grand Jury has been cited by the prosecution and none has been found by the Court. It is certainly not set forth in CPL Art. 190, in any CJI pattern Grand Jury charge,[FN3] nor in any appellate decision brought to the Court's attention. I therefore conclude there is no legal requirement binding on the Grand Jury that a vote be taken separately on each count. It follows that a failure to observe that rubric is not a basis upon which a Court may properly exercise its discretion to authorize a resubmission of a charge to the Grand Jury pursuant to CPL 190.75 (3). See, People v Dykes, 86 AD2d 191 (2d Dept 1982 ). Regardless of motive, this reconsideration was tantamount to a prosecutorial second chance, without good reason, to obtain a positive result from a Grand Jury which had just rejected the People's case after hearing conflicting testimony from several police and defense witnesses. This second "bite at the apple" was not justified. People v Montanez, supra at 693.

The prosecution's only remaining argument, also based on People v Montanez, supra, is that this resubmission was allowable even without Court intervention because it was initiated sua sponte by the Grand Jury. This argument fails for at least two reasons. First, an inquiry or complaint by a single Grand Juror to the Warden is not action by the Grand Jury as a body and cannot be characterized as sua sponte action. Second, the Court's inquiry and direction, together with the prosecutor's objectionable marshaling of the evidence and unsolicited recharge on the law (similar to the prosecutorial involvement condemned in Montanez) transformed the original Grand Juror's action into action by the Court and the prosecutor. See, People v. Groh, 57 AD2d 389 (2d Dept 1977); People v Shammas, 5 Misc 3d 702 (Crim Ct, Kings County, 2004 ). Once reviewed and found wanting, that resubmission cannot be justified as sua sponte by the Grand Jury. People v Groh, supra .

In holding that this resubmission was improvidently allowed, I further conclude that the only appropriate remedy is a dismissal of the entire indictment with prejudice.[FN4] People v Dykes, supra at 194-195. Indeed to allow another representation de novo to a new Grand Jury would be tantamount to condoning the original application and Order, and granting the prosecution a second chance to indict defendant for these charges for no good reason. Moreover, considering the history of this case before the Grand Jury, any subsequent submission would likely violate [*3]CPL 190.75 (3).[FN5] In light of the aforesaid ruling I do not reach defendant's violation of due process claim, though I recognize that it adds weight to the motion. Essentially, the argument is that the failure to explain clearly to the Grand Jury as a whole the reason for the re-vote, taken together with a biased marshaling of the evidence and an unsolicited recharge, all created a substantial risk that the Grand Jurors may have believed it was the Court's or the prosecutor's dissatisfaction with the original vote that caused reconsideration.

Accordingly, this entire indictment is hereby DISMISSED with prejudice.

SO ORDERED.

E N T E R,

JOSEPH KEVIN McKAY Footnotes

Footnote 1: See, People v. Guerra, 65 NY2d 60, 63 (1985). But see, People v Davis, 162 Misc 2d 662 (Sup Ct, Kings County, 1994 ).

Footnote 2: A thorough and uncontradicted recital of the prosecutor's marshaling deficiencies is set forth in defendant's Reply Affirmation at paragraphs 15-16.

Footnote 3:The closest language from the CJI Grand Jury Charge (Revised: June 10, 2002) is as follows: "Therefore, you must give individual consideration to each person under investigation, and to each charge you are considering." I do not construe this instruction to mandate any particular method of voting, or that the Court should monitor how a vote is taken. Moreover, the Grand Jury Justice did not make a finding that this instruction was violated by the Grand Jury in this case.

Footnote 4:The additional (enhanced) count of Criminal Possession of a Weapon in the Third Degree, the SECOND COUNT, added on September 28, 2004, is too dependent on the original Grand Jury presentation, wherein a "No True Bill" was voted, to justify that count's separate survival.

Footnote 5: The FIRST COUNT, Criminal Possession of a Weapon in the Third Degree ( Penal Law § 265.02-4 ), should be dismissed for a separate and independent reason. There was no evidence presented to the Grand Jury that the ammunition received with the firearm was operable. Only inventory ammunition was used to test fire the weapon. See, People v Guinac , 309 AD2d 1070 ( 3d Dept 2003 ). While this would ordinarily be curable by further tests and a representation, that is not permissible in this case. Also, the FOURTH COUNT, Unlawful Wearing of a Body Vest, must be dismissed for a separate and independent reason: legal insufficiency. The prosecutor failed to submit any evidence that the vest in question met the specifications set forth in Penal Law § 270.20 (2), nor did the prosecutor properly charge the Grand Jury on those specifications. See, People v Garcia , 202 AD2d 189 ( 1st Dept 1994 ), lv denied 83 NY2d 1003 ( 1994 ).