People v Grant

[*1] People v Grant 2007 NY Slip Op 51456(U) [16 Misc 3d 1117(A)] Decided on August 1, 2007 Essex County Ct Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2007
Essex County Ct

People of the State of New York

against

John E. Grant (Jr.), Defendant.



07-114



(Appearances: Julie A. Garcia, Esq., Essex County District Attorney (Ellen C. Schell, Esq., of counsel), Elizabethtown, New York; Brandon Boutelle, Deputy Public Defender, Elizabethtown, New York for defendant.)

Richard B. Meyer, J.

Omnibus motion by the defendant for dismissal of the indictment dated March 23, 2007 on various grounds including insufficient evidence before the grand jury, violation of the defendant's right to a speedy trial and for other relief in the nature of discovery and a bill of particulars, suppression, and the scheduling of hearings in connection therewith.

Defendant is charged by a four-count indictment with having allegedly committed the crimes of sexual abuse in the first degree, a class D felony (Penal Law §130.65[1]), two counts of endangering the welfare of a child (Penal Law §260.10[1]), a class A misdemeanor, and unlawfully dealing with a child (Penal Law §260.20[2]). The charges arise out of an incident alleged to have occurred on September 30, 2006 in the Village of Saranac Lake, Essex County, New York.

Upon the motion papers, the minutes of the proceedings before the Grand Jury, the indictment and such other papers on file with the Court, and the proceedings heretofore had herein, and due deliberation having been had thereon, the decision and order of the Court on defendant's omnibus motion is set forth below.

I.DISMISSAL OF INDICTMENT

Defendant seeks dismissal of the indictment on the grounds that the indictment is defective and does not substantially conform to the requirements of CPL Article 200 (CPL §210.25), the grand jury proceedings were defective (CPL §210.35), and that the evidence before the grand jury was not legally sufficient to establish one or more of the offenses charged or any lesser included offense (CPL §210.20[1][b]). The defendant has also moved pursuant to CPL §210.20 (1-a) and §210.25(1) [*2]for the Court to examine the grand jury minutes and thereafter, if appropriate, dismiss or reduce one or more counts of the indictment.

The defendant's motion to inspect the grand jury minutes is granted. Upon inspection, the minutes reveal that a quorum of the grand jurors were present during the presentation of evidence and at the time the assistant district attorney instructed the grand jury on the law, and that at least 12 of those grand jurors voted to indict the defendant. Also, the instructions were not defective as a matter of law.

The Court has considered the defendant's claim that his request for a witness to testify before the grand jury was not honored. The grand jury minutes reflect that the defendant's request was indeed communicated to the grand jury, and that the request was ultimately denied by the grand jury. Of concern is the statement by the presenting assistant district attorney to the grand jurors, made before that body decided whether to hear the witness, that such testimony "doesn't appear to have much relationship to the charges". The district attorney has a "unique and powerful dual role in Grand Jury proceedings" as "an advocate and public officer, charged not only with the duty to secure indictments but also to ensure that justice is done" (People v. Dzeloski, 161 Misc 2d 867, 615 NYS2d 624 citing People v. Lancaster, 69 NY2d 20, 511 NYS2d 559, 503 NE2d 990, and People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 83-84, 464 NE2d 447, 450-451). The prosecutor is bound by a duty of fair dealing, requiring the exercise of completely impartial judgment and discretion (see People v. Pelchat, supra .). Only in instances of repeated and pervasive misconduct by the prosecutor resulting in the possibility of prejudice to the defendant is dismissal of an indictment warranted (CPL 210.35[5]; see also People v. DiFalco, 44 NY2d 482, 406 NYS2d 279, 377 NE2d 732). Isolated incidents of misconduct which neither mar the integrity of the grand jury nor lead to the possibility of prejudice do not warrant dismissal of an indictment (People v. Huston, 88 NY2d 400, 646 NYS2d 69, 668 NE2d 1362). The single, inappropriate statement here does not rise to the level of misconduct or warrant dismissal of the indictment.

The defendant's motion to dismiss the indictment for alleged defects in the grand jury proceedings is denied.

An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime, such as by failing to allege that the defendant committed acts constituting every material element of the crime charged (People v. Iannone, 45 NY2d 589, 600, 412 NYS2d 110, 384 NE2d 656). Incorporation by reference to the statute operates to constitute allegation of the elements of the crime (see People v. D'Angelo, 98 NY2d 733, 750 NYS2d 811, 780 NE2d 496; People v. Ray, NY2d 850, 527 NYS2d 740, 522 NE2d 1037; People v. Cohen, 52 NY2d 584, 586, 439 NYS2d 321, 421 NE2d 813; People v. Squire, 273 AD2d 706, 706-707, 711 NYS2d 790). The Court has examined the indictment and finds that it fully complies with CPL §200.50 (7).

In determining whether sufficient evidence has been presented to the grand jury, the evidence before the grand jury must be viewed in a light most favorable to the prosecution and if unexplained and uncontradicted constitute prima facie proof such as would warrant a conviction after trial (People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472, 474, 646 NE2d 774, 776). The grand jury minutes reveal that in the afternoon of September 29, 2006, the defendant accompanied a sixteen year old female to a motel room in Saranac Lake, New York where he supplied her with four drinks containing vodka and cranberry juice. While watching television on the bed, the alleged victim fell asleep. When she awakened sometime during the daylight hours of the next day, her shirt and bra [*3]were off, and her pants were unbuttoned. As he was getting dressed, the defendant told the alleged victim that he "screwed [her]". The defendant then removed the her pants and inserted his fingers into her vagina. The alleged victim told him once to stop, but he did not and instead continued the contact for "a short time", after which they both fell asleep. When they awakened, they left the motel, and the defendant dropped her off across the street "from where he was going".

The defendant's motion to dismiss Count One of the indictment charging him with sexual abuse in the first degree by forcible compulsion (Penal Law §130.65[1]) must be granted. " Forcible compulsion' means to compel by either:a.use of physical force; orb.a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped." (Penal Law §130.00[8]).

Here, the alleged victim's single statement to stop, without more, is insufficient to establish the element of forcible compulsion. No evidence was submitted to the grand jury that the defendant made verbal threats against the alleged victim or another person (see, e.g., People v. Archer, 232 AD2d 820, 649 NYS2d 204, appeal denied 89 NY2d 1087, 660 NYS2d 381, 682 NE2d 982, on reconsideration 90 NY2d 938, 664 NYS2d 756, 687 NE2d 653), that he threatened conduct or the use of restraint, or engaged in threatening conduct, which placed the alleged victim in fear (see, e.g., People v. Stephens, 2 AD2d 888, 767 NYS2d 514, leave to appeal denied 2 NY3d 746, 778 NYS2d 471, 810 NE2d 924), or used any physical force or restraint against her or another person (see, e.g., People v. Watson, 281 AD2d 691, 721 NYS2d 700, leave to appeal denied 96 NY2d 925, 732 NYS2d 643, 758 NE2d 669). Similarly, there was no evidence of any circumstances such as the victim's strength, size or age, nor of the victim's subjective state of mind, from which it could reasonably be inferred that the alleged victim was compelled to submit to sexual contact (see, e.g., People v. Orda, 180 Misc 2d 450, 690 NYS2d 822; People v. Davis, 21 AD3d 590, 799 NYS2d 324). "This evidence falls short of the objective level necessary to raise a question of fact for the jury to resolve (People -v- Thomas, 274 AD2d 761, 761-762, 711 NYS2d 563 [2000], lv. denied, 95 NY2d 939, 721 NYS2d 615, 744 NE2d 151 [2000]; c.f., People -v- Hogencamp, 300 AD2d 734, 735, 751 NYS2d 134 [2002])." (People v. Winchester, 14 AD3d 939, 941, 790 NYS2d 238, 240).

Upon finding the evidence before the grand jury insufficient to support a charge, the Court must reduce the charge to a lesser included offense if there is such an offense that is supported by legally sufficient evidence (CPL §210.20[1-a]). There was legally sufficient evidence to support the lesser included offense of sexual abuse in the third degree based upon lack of consent (Penal Law §130.55; see People v. DelCampo, 281 AD2d 279, 722 NYS2d 148; People v. Hughes, 220 AD2d 529, 632 NYS2d 585), and Count One of the indictment is accordingly reduced thereto. Absent waiver by the prosecution, such reduction is stayed for a period of thirty days during which the prosecution must exercise one of the options provided for in CPL §210.20(6). The remaining counts of the indictment are supported by sufficient evidence and the defendant's motion to dismiss is otherwise denied.

II.DISMISSAL OF INDICTMENT FOR DELAY STATUTORY SPEEDY TRIAL [*4]

Defendant alleges that he has been denied his statutory right to a speedy trial under CPL §30.30. The criminal action was "commenced" on September 30, 2006 when the first accusatory instrument was filed in local criminal court (CPL §1.20(17), CPL 30.30 (1)[a]); People v. Stirrup, 91 NY2d 434, 671 NYS2d 433, 694 NE2d 434). Since the subsequent filing of an indictment charging a felony crime extends the period within which the People must be ready for trial from sixty or ninety days to six months (see People v. Cooper, 90 NY2d 292, 660 NYS2d 546, 683 NE2d 11), the applicable readiness period here is six months. In calculating whether the speedy trial requirements have been met, the actual date of filing of the initial accusatory instrument is not included (People v Stiles, 70 NY2d 765, 520 NYS2d 745, 514 NE2d 1368). The term "ready" for trial within the meaning of CPL §30.30(1) contemplates two necessary elements (People v. Kendzia, 64 NY2d 331, 486 NYS2d 888, 476 NE2d 287; People v. England, 84 NY2d 1, 613 NYS2d 854, 636 NE2d 1387). First, the People must communicate to the court and to defense counsel that it is prepared and willing to proceed with the People's case at trial, and such communication must appear on the trial court's record (Id.). Secondly, the prosecution must make this statement of readiness when the People are in fact then presently ready to proceed such that all legal impediments to commencement of the People's case have been removed (People v. England, supra .). Readiness is not affected by the fact that discovery is incomplete (see People v. Holden, 260 AD2d 233, 689 NYS2d 40, appeal denied 93 NY2d 1003, 695 NYS2d 749, 717 NE2d 1086).

Barring some statutory exclusion under CPL §30.30(4), the People are charged with the number of days which pass between the filing of the accusatory instrument and their initial statement of readiness, and this period is known as "pre-readiness delay". Also, the People are charged for delays occurring after a statement of readiness when the delay is not excludable under §30.30(4) and is solely and exclusively the fault of the People (People v. Cortes, 80 NY2d 201, 210, 590 NYS2d 9, 604 NE2d 71). A reasonable delay resulting from an adjournment for pre-trial motions and the time period during which those motions are under consideration by the court is excludable (CPL §30.30[4][a]).

"Where a defendant moves to dismiss an indictment on the grounds specified in CPL 30.30 and includes in the moving papers sworn allegations that there has been unexcused delay in excess of the statutory maximum, the motion must be granted summarily unless the People controvert the factual basis for the motion" (People v. Santos, 68 NY2d 859, 861, 508 NYS2d 411, 501 NE2d 19). However, "the defendant ordinarily has the burden of showing that any post-readiness adjournment occurred under circumstances that should be charged to the People (People v. Cortes, supra .).

Here, the misdemeanor complaints were filed in the local criminal court on September 30, 2006. The defendant was arraigned upon indictment charging him with a felony crime on March 27, 2006, at which time the People stated ready on the record and the matter was adjourned for the filing of motions and the court's decision on such motions. Having failed to dispute that the 178-day period that between the filing of the initial criminal charges and the defendant's arraignment, at which the People announced their readiness for trial, is chargeable time or assert that during such period certain exclusions apply, the prosecution has essentially conceded that all such time is chargeable to the People. Still, even though 178 days of chargable time have elapsed, the defendant has failed to establish that the applicable six month speedy trial time has expired. The defendant's motion to dismiss for violation of his statutory speedy trial rights is denied without prejudice to renewal.

[*5]III.DISMISSAL OF INDICTMENT FOR DELAY CONSTITUTIONAL SPEEDY TRIAL

Defendant also moves to dismiss the indictment on the grounds that there was an unjustified delay between the date of the alleged commission of the crimes and the commencement of the criminal action, resulting in a denial of his speedy trial rights under the Sixth Amendment to the United States Constitution (see also CPL §30.20; People v. Anderson, 66 NY2d 529, 498 NYS2d 119, 488 NE2d 1231) and of his due process rights under the New York and United States constitutions. Defendant also seeks, in the alternative, a Singer hearing (People -v- Singer, 44 NY2d 241, 405 NYS2d 17, 376 NE2d 179) to determine whether good cause exists for the delay.

The nature of the underlying charges are serious and the defendant has failed to identify any actual prejudice attributable to the delay based upon the death of an alleged alibi and fact witness who died approximately fifty days after the alleged incident of September 30, 2006. The purported testimony of the alleged alibi witness is neither specified nor substantiated, and there has been no showing that such testimony is critical to the defense (see People v. Jones, 188 AD2d 745, 591 NYS2d 555; People v. Mann, 200 AD2d 910, 607 NYS2d 158). Under these circumstances, the commencement of the criminal action on September 30, 2006 by the filing of the misdemeanor complaints in local criminal court and the passage of 178 days thereafter before the indictment was filed on March 27, 2007, does not constitute an unjustified delay (see, People v. Taranovich, 37 NY2d 442, 373 NYS2d 79, 335 NE2d 303; People v. Irvis, 301 AD2d 782, 754 NYS2d 693; People v. Allende, 206 AD2d 640, 614 NYS2d 612). The defendant's motion to dismiss, or alternatively for a Singer hearing, is denied.

IV.SANDOVAL / VENTIMIGLIA / MOLINEUX

The prosecution is required, immediately prior to the commencement of jury selection and upon request of the defendant, to notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecution has knowledge and which it intends to use at trial for purposes of impeaching the credibility of the defendant (CPL §240.43). Upon the defendant's request, the trial court must conduct a hearing prior to the commencement of jury selection (CPL §240.43), and in the court's discretion it may direct that such notification, and the Court's determination as to admissibility, take place within a period of three days, not including Saturdays, Sundays and holidays, before the commencement of jury selection (CPL §240.43).

Similarly, the defendant may move prior to trial for an order limiting or prohibiting the use of defendant's prior convictions to impeach his credibility as a witness (People v. Sandoval, 34 NY2d 371, 357 NYS2d 849, 314 NE2d 413), and in so moving the defendant must specify the prior criminal acts for which a ruling is sought (see People v. Sandoval, supra at 378, 357 NYS2d at 856, 314 NE2d at 418; People v. Matthews, 68 NY2d 118, 123, 506 NYS2d 149, 151, 497 NE2d 287, 289).

Also, the prosecution may offer evidence of a defendant's prior convictions or uncharged crimes as part of its prima facie case (People v. Molineaux, 168 NY 264, 61 NE 286; People v. Ventimiglia, 52 NY2d 350, 438 NYS2d 261, 420 NE2d 59), but the prosecution bears the burden of requesting a pre-trial hearing to determine the admissibility of such evidence (People v. Valencia, 263 AD2d 874, 695 NYS2d 186).

The Court will deem the defendant's motion as a request pursuant to §240.43, and the prosecution is directed to notify the defendant not less than 3 days prior to the commencement of [*6]jury selection, of all specific instances of his alleged prior uncharged criminal, vicious or immoral conduct which the prosecution intends to use at trial for purposes of impeaching the credibility of the defendant. In the event that the defendant objects thereto, he shall file a written request for a hearing at least one day prior to the commencement of jury selection.

As to the defendant's prior convictions, the defendant shall file any motion for an order limiting or prohibiting the use thereof to impeach his credibility as a witness, returnable at least 10 days prior to the commencement of jury selection, and specify therein the convictions for which a ruling is sought. At such hearing, to be held in conjunction with the hearing under CPL §240.43, the defendant bears the burden of specifying the particular prior convictions and instances of misconduct which he believes might unfairly affect him were he to testify.

In the event that the prosecution intends to offer evidence of a defendant's prior convictions or uncharged crimes as part of its direct case, it shall file a motion for a pre-trial hearing to determine the admissibility of such evidence and specify therein the convictions and uncharged crimes for which a ruling is sought. Such motion shall be made returnable at least 10 days prior to the commencement of jury selection.

V.COMPEL DISCOVERY

The defendant claims that the prosecution has failed to comply with paragraphs 3(h) and 3(j) of the demand for discovery served on March 30, 2007 seeking any and all "evidence collection notes, logs, etc." and "chain of custody documents". In its response to these demands, The prosecution objected to these demands in its response and claimed that the request falls outside the statutory scope of discovery.

Discovery in a criminal case is strictly controlled by statute (CPL Article 240; see Pirro -v- LaCava, 230 AD2d 909, 910, 646 NYS2d 866, 867; see also Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A,CPL 240.10, at 333). CPL 240.20(1)(c) compels disclosure by the People of "any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action of proceeding". The defendant asserts that this provision mandates disclosure of the material in question.

The defendant's motion is granted to the extent that the prosecution is directed to furnish the defendant's counsel with true and complete copies of all evidence and/or chain of custody notes, logs and other documents relating to the items of evidence collected by law enforcement and forwarded to the New York State Police for forensic examination, analysis and/or testing (see People v. DaGata, 86 NY2d 40, 629 NYS2d 186, 652 NE2d 932).

VI.BRADY

The prosecution has a continuing affirmative duty to provide exculpatory information to the defendant (see Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 LEd2d 215; People v. Cwikla, 46 NY2d 434, 414 NYS2d 102, 386 NE2d 1070). Disclosure is required even where no request is made if the exculpatory evidence is material (see United States v. Augurs, 427 US 97, 96 SCt 2392, 49 LEd2d 342; People v. Vilardi, 76 NY2d 67, 556 NYS2d 518, 555 NE2d 915). Exculpatory information includes any information that would be "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses," irrespective of whether the prosecution credits such information (People v Baxley, 84 NY2d 208, 616 NYS2d 763, 9 NE2d 746). Moreover, this requirement encompasses evidence and information actually and constructively within the possession of the prosecution or accessible to it, including evidence and information in the [*7]possession or control of persons or agencies considered an "arm" of the prosecution or part of the "prosecution team" (see United States v. Avellino, 136 F3d 249, 255; United States v. Morell, 524 F2d 550, 555; People v. Steadman, 82 NY2d 1, 603 NYS2d 382, 623 NE2d 509; People v. Lumpkins, 141 Misc 2d 581, 533 NYS2d 792).The prosecution avers that there is no Brady material in this case; but no affirmative representation or statement is made as to the efforts made to locate and identify such material. Since the prosecution is under a continuing obligation to timely disclose any such information to the defense, the prosecution is directed to comply with its' Brady obligations and to (1) immediately contact any and all law enforcement agencies and personnel, as well as all other persons and agencies considered to be part of the "prosecution team" to locate and identify Brady information and material, and (2) expeditiously disclose to the defendant any such information upon actually or constructively coming into its possession or knowledge. Included within this affirmative directive are the records identified in paragraph 54 of the affirmation of defendant's counsel submitted in support of the omnibus motion and dated May 25, 2007. Failure to so comply may result in sanctions including but not limited to prohibition of the introduction of certain evidence or the calling of certain witnesses, and/or the reversal of conviction (see CPL §240.70, §240.75).

VII.SUPPRESSION OF STATEMENTS (HUNTLEY)

Defendant moves for a Huntley hearing (People v. Huntley, 15 NY2d 72, 255 NYS2d 838) to determine whether statements made by the Defendant to law enforcement personnel were involuntary. The People have no objection to scheduling a hearing. Thus, a Huntley hearing (People v. Huntley, 15 NY2d 72, 255 NYS2d 838) is granted to determine the admissibility of the statements allegedly made by the Defendant, and is scheduled for August 22, 2007 at 1:00 p.m.

VIII.PRE-TRIAL HEARINGS (SANDERS)

Defendant's motion to require that any pre-trial hearings be held sufficiently in advance of trial to allow for transcripts to be furnished (People v. Sanders, 31 NY2d 463, 341 NYS2d 305, 293 NE2d 555), is granted. The trial shall be scheduled not earlier than twenty (20) days after the conclusion of the hearings scheduled by this decision and order.

IX.FURTHER MOTIONS

Defendant's motion to reserve the right to make further motions and supplement current motions is denied without prejudice to file such motions upon good cause shown.

IT IS SO ORDERED.

Decision and Order signed this 2nd day of August, 2007, at Elizabethtown, New York.

ENTER

___________________________________

Richard B. Meyer

Essex County Judge