People v Youngs

[*1] People v Youngs 2005 NY Slip Op 51966(U) [10 Misc 3d 1055(A)] Decided on December 2, 2005 County Court, Yates County Falvey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2005
County Court, Yates County

THE PEOPLE OF THE STATE OF NEW YORK

against

Roger H. Youngs, Defendant.



05-38



Hon. Susan H. Lindenmuth

Yates County District Attorney

Counsel for the People

Laduca Law Firm LLP

(John J. LaDuca, Esq., of Counsel)

Counsel for the Defendant.

W. Patrick Falvey, J.

Defendant, Roger H. Youngs, was indicted for five counts of Sexual Abuse in the First Degree, a class D violent felony in violation of Penal Law §130.65(3).

Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated September 21, 2005 and sworn to by defendant's counsel on September 21, 2005, his supplemental affirmation and other supporting documents.

Upon argument of his Omnibus Motions on November 22, 2005 certain branches and elements therein were decided and determined upon said argument.

The Court also reserved decision, at the conclusion of oral arguments on the following issues:

1. The Grand Jury proceedings failed to conform to the requirements of CPL Article 190 pursuant to CPL sections 210.20(1)(c) and 210.35;

2. Inspection of the Grand Jury minutes and, upon such inspection, for a dismissal of the indictment on the grounds that it was defective and/or the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser offenses as well as other stated grounds. CPL sections 210.20(1)(a) and (b) and 210.30; or in the alternative,

3. Reduction pursuant to CPL section 210.20(1-a).

Based on the defendant's motion papers, the District Attorney's responding affirmation dated October 2, 2005 and subsequent supplemental affirmation; the Grand Jury Minutes, the arguments had and all the proceedings herein the Court decides as follows: [*2]

THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM

TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS

The defendant requests that the Court disclose the minutes of the Grand Jury proceedings. However, maintaining the secrecy or confidentiality of grand jury minutes is a matter of paramount public interest. Ruggiero v. Fahey, 103 AD2d 65. The secrecy is jealously guarded because confidentiality of its proceedings is necessary to ensure its continued effectiveness. Matter of Grand Jury, New York County, 125 Misc 2d 918.

However, in the discretion of the Trial Court, disclosure may be directed, when after balancing of the public interest in disclosure against one favoring secrecy, the former outweighs the latter. Matter of District Attorney of Suffolk County, 58 NY2d 436; Application of Fojp Service Corp., 119 Misc 2d 287.

In order for the Court to release the grand jury minutes to defense counsel, counsel must "first establish a compelling and particularized need for them". People v. Shakiya Robinson and Bruce Jamsen, 98 NY2d 755. "Only then must the court assess in its discretion, whether disclosure is appropriate under the circumstances". People v. Fetcher, 91 NY2d 765. It is a two-step process that conforms to the due process requirements of the Constitution. People v. Ramos, 85 NY2d 678.

Based on a review of the Grand Jury Proceedings the Court determines that it does not need counsel's assistance by turning over said minutes in order to properly rule on this issue. The Court finds no compelling and particularized need for disclosure, persuasive enough to overcome the strong presumption in favor of secrecy. Fojp, supra . Furthermore, the defendant was not able to meet his/her burden to establish a compelling need for the minutes.

The defendant moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35.

An Indictment regular on its face must be presumed to have been properly returned by the Grand Jury. People v. Smith, 128 NYS2d 90, aff'd 283 AD 775. Furthermore, Grand Jury proceedings carry a presumption of regularity and to overcome that presumption there must be a showing by the defendant of a particularized need or gross and prejudicial irregularity in the proceedings or some other similarly compelling reason. People v. Lewis, 98 AD2d 853.

The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).

An Indictment imparts absolute verity until properly impeached, and until there is satisfactory proof to the contrary it is presumptively regular, not only in its basis upon sufficient legal evidence but also in its foundation upon lawful proceedings by the grand jury, including due concurrence in indictment by the requisite number of grand jurors. People vs. Brinkman, 309 NY 974, 975.

The presumption is in favor of the validity of an indictment, which was presented by a grand jury, 22 of whose members were present when the case was presented. People v. Blair, 17 Misc 2d 265. And the Grand Jury is privileged to return an indictment so long as at least 12 of the Grand Jurors who voted to indict heard all the essential and critical evidence. People v. Brinkman, supra ; People v. Infante, 125 AD2d 86. [*3]

The Court finds that the presentation of the case at bar was begun and completed in one (1) day, that is, August 12, 2005, and that 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1)] and more than twelve grand jurors voted to indict the defendant herein on all counts. [CPL sections 210.35(2) and (3)].

The defendant also alleges that he was not accorded a "fair" opportunity to testify before the Grand Jury in accordance with the provisions of CPL section 190.50. [CPL section 210.35(4)]

The law is clear that denial of the right to appear before the Grand Jury invalidates an Indictment. Furthermore, the denial of an opportunity to fully testify may result in defective proceedings prejudicial to the defendant, as well. However, waiver of the denial to appear occurs unless a motion to dismiss the indictment on that ground is made no later than five days after arraignment on the indictment. People v. Reddy, 108 AD2d 945; CPL section 190.50(5c). It follows that Mr. Youngs objection is also subject to this restriction. The defendant has the right to raise said issue in a timely manner, but it is inconceivable that the legislature intended the remedy of a defect in the proceedings to be used as a loophole or subterfuge to avoid prosecution. People v. Willis, 114 Misc 2d 371.

In the case at bar the facts indicate that the defendant did in fact testify before the Grand Jury with his attorney present on August 12, 2005. Subsequently, on August 23, 2005, the Indictment was filed and the defendant was arraigned, with counsel. The case was then placed on the motion calendar. The defendant, through counsel, filed his notice of Omnibus motion dated September 21, 2005 with an initial return date of October 11, 2005. Both the notice of motion and return date were more than five (5) days after defendant was arraigned in County Court which makes this motion untimely (see People v. Green, 80 AD2d 650, 651) in the first instance pursuant to CPL §190.50(5)(c).

However, assuming arguendo, that the defendant's application was timely, the Court has reviewed the Grand Jury Minutes in relation to, among other things, whether or not the District Attorney impermissibly limited the defendant's testimony before the Grand Jury? To this question the Court concludes that the defendant was not impermissibly limited in his testimony.

The Grand Jury Minutes reveal that at the commencement of his testimony the defendant was asked:

"Would you please give us your statement of any relevant and competent evidence concerning these allegations." (p. 15, line 12-14).

The defendant responded: "Well, first thing I got to say is I'm Roger Youngs. I have two kids." (p. 15, line 15-16).

The prosecutor then stated: "Okay. Mr. Youngs, you have to testify what this matter is about. Okay? The allegations. What do you have to testify to concerning the allegations?" (p. 15, line 17-19). [*4]

The defendant then continued with his testimony.

The defendant claims that he wanted to give background testimony concerning his work, good character, and lack of prior criminal history. He cites People v. Miller, 144AD2d 94, 97; and People v. Green, 80 AD2d 650 wherein the Miller Court stated:

"At the time defendant's case was presented to the Grand Jury, he requested an opportunity to testify on his own behalf with counsel present (see, CPL 190.45[3]; 190.50[5][b]; 190.52). When a defendant elects to exercise this right, it is required by statute that he be afforded an opportunity to give his version of events prior to being examined by the People (People v. Lerman, 116AD2d 665,666; People v. Durante, 97 AD2d 851). Here, the record demonstrates that defendant had barely commenced his narrative explanation of the events when he was interrupted and persistently questioned by the prosecutor without a meaningful opportunity to continue his narrative testimony. While it is permissible for a prosecutor to interrupt the narrative and question a defendant for purposes of "clarification" (cite omitted), care must be taken to assure that a defendant is given a fair opportunity to present his version of events before being subjected to examination by the People" Id., 97. (See also People v. Smith, 84 NY2d 998, 1000; and People v. Gudz, 18 AD3d 11.)

Here, the prosecutor merely directed the defendant to the events in question. Furthermore, the prosecutor later asked: "Is there anything else that you would like to say?" (p. 20, line 17-18). This clearly shows that the defendant was given another opportunity to mention matters he wished to bring up regarding the allegations.

Therefore, the Court finds that the defendant was not impermissibly fettered in his testimony before the Grand Jury.

The defendant also alleges that the Grand Jury proceeding failed to otherwise conform to the requirements of CPL Article 190 to such a degree that the defendant was prejudiced and that the Grand Jury's integrity was impaired. CPL section 210.35(5).

In conjunction with this the Court has carefully reviewed the instructions given the Grand Jury by the Court and District Attorney as well as CPL Article 190 as it pertains to the present indictment.

In order to help ensure that the Grand Jury properly performs its function, the Court and the District Attorney are designated to act as its legal advisors [see CPL section 190.25 (6)]. One of the duties of the legal advisor is that it "must instruct the grand jury concerning the law with respect to its duties or any matter before it" in instances "[w]here necessary or appropriate" [CPL section 190.25 (6)]. No statutory provision expands upon the meaning of the phrase, "necessary or appropriate", or addresses the issue of the specificity required when instructions are given. People v. Malave, 124 Misc 2d 210, 212. People v. Calbud, Inc., 49 NY2d 389, 394 as quoted in Malave, supra at pp. 212-213, states the Court of Appeals noted in part as follows:

"...due to the 'functional difference' between the grand jury and a [*5]petit jury 'it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court's instructions to a petit jury.' It further observed (p 394) that 'the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected' in CPL 190.25 (sub 6) and in CPL 300.10 (subd 2). Whereas CPL 190.25 (subd 6) merely required that the Grand Jury must be instructed where 'necessary or appropriate', the court noted (p 394) that CPL 300.10 (subd 2) contains specific requirements concerning the legal instructions that must be provided to a petit jury. The Court (pp. 394-395)

deemed 'it sufficient if the District Attorney provides 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."

"....CPL 190.60 is silent as to the duty of the legal advisor with respect to instructing the Grand Jury as to its options upon hearing the evidence before it. The language of CPL 190.60 is couched in terms of the permissive and merely provides that '[a]fter hearing and examining evidence***a grand jury may' take certain prescribed actions, including voting to indict an individual for an offense and voting to dismiss the charge before it." Malave, supra p. 213.

As legal advisor, the District Attorney is entrusted with the duty of instructing the Grand Jury concerning the law or any matter properly before it and normally it is sufficient for the prosecutor to read the appropriate Penal Law sections to the Grand Jury. People v. Kennedy, 127 Misc 2d 712.

When considering the issue of sufficiency one must understand that the function of the Grand Jury is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject he or she to criminal prosecution. This function is opposed to that of a petit jury, which bears the ultimate responsibility of determining the guilt or innocence of the accused. Calbud, supra .

Therefore, a Grand Jury indictment is authorized when the evidence before it is legally sufficient to establish that such person committed a crime and competent and admissible evidence provides reasonable cause to believe that such person committed the crime. [CPL section 190.65 (1)]. And the standard of review upon a motion to dismiss for legal insufficiency is whether the evidence before the Grand Jury if unexplained and uncontradicted would warrant a conviction by a trial jury. People v. Pelchat, 62 NY2d 97; People v. DunLeavy, 41 AD2d 717, affd 33 NY2d 573.

"Legally sufficient evidence" means competent evidence which if accepted as true, would establish every element of the offense charged and the defendant's commission thereof; except when corroboration required by law is absent. [CPL section 70.10(1)].

Under CPL section 70.10(2) "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or [*6]circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

Therefore, the evidence before a Grand Jury is legally sufficient if there is competent evidence, which, if accepted as true, establishes every element of the offense charged or a lesser included offense and the defendant's commission thereof. People v. Mayo, 36 NY2d 1002.

Thus, it has been stated that "the evidence [before the Grand Jury] must be viewed in the light most favorable to the People and it may be legally sufficient although it does not even provide "reasonable cause", to believe that the defendant committed the crime charged. People v. Deitsch, 97 AD2d 327, 329.

The motion having been granted to the extent that the Court has made an In Camera inspection of the Grand Jury minutes and, upon such reading, the Court finding them to be legally sufficient, the motion to dismiss the indictment against the defendant upon the grounds that 1) the grand jury proceeding was defective; 2) the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser included offense(s) or in the alternative, 3) the charges should be reduced is in all respects denied.

The defendant's motion as decided herein is in all respects denied.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: December 2, 2005.

s/ ______________________________

W. Patrick Falvey

Yates County Judge