People v Gayton

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[*1] People v Gayton 2008 NY Slip Op 52680(U) [23 Misc 3d 1117(A)] Decided on January 25, 2008 Supreme Court, Monroe County Valentino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2008
Supreme Court, Monroe County

The People of the State of New York, Plaintiff,





For the People:Michael C. Green

Monroe County District Attorney

Jennifer A. Whitman, A.D.A.

47 South Fitzhugh Street, Suite 832

Rochester, New York 14614

For the Defendants:Mark A. Young, Esq.

For Defendant Gayton

Michael T. DiPrima, Esq.

For Defendant Batjer

Adrian J. Burke, Esq.

For Defendant Gano

Peter J. Pullano, Esq.

For Defendant Knapp

Thomas J. Cocuzzi, Esq.

For Defendant Deats

Monroe County Public Defender

Donald M. Scalia, A.P.D.

For Defendant Vickers

Paul D. MacAulay, Esq.

For Defendant Sloyer

Joseph D. Valentino, J.

In this 179-count indictment against seven defendants alleging body stealing (Public Health Law § 4216), opening graves (Public Health Law § 4218), unlawful dissection of a human body (Public Health Law § 4210-a), forgery in the second degree (Penal Law § 170.10 [1]), scheme to defraud in the first degree (Penal Law § 190.65 [1] [a]), and falsifying business records in the first degree (Penal Law § 175.10), the above-named defendants joined in a motion to dismiss the charges under the Public Health Law on the grounds that article 42 of the Public Health Law is inapplicable. Defendants also moved (1) for inspection of the Grand Jury minutes, (2) to dismiss the indictment for insufficiency and defects, and (3) for release of the Grand Jury minutes. In addition, defendant Gayton specifically moved to dismiss the 179th Count alleging scheme to defraud in the first degree. Also, defendant Bajter moved to suppress evidence seized pursuant to a search warrant. The People opposed defendants' motions, but conceded that the 179th Count should be reduced to scheme to defraud in the second degree (Penal Law § 190.60 [1]).

I.Applicability of Public Health Law Article 42

Defendants contended that the crimes under Article 42 of the Public Health Law of body stealing, opening graves and unlawful dissection of a human body are not properly charged. The crux of their argument is that these crimes under Public Health Law (hereinafter PHL) Article 42 do not apply to the violations alleged to have been committed and that PHL Article 43 governs because the charges relate to anatomical gifts and tissue procurement was involved.

Enactment of PHL Article 43, titled "Anatomical Gifts," did not result in repeal of the crimes charged under PHL Article 42, Title II, titled "Autopsy and Dissection." Granted PHL § 4201 was repealed by PHL Article 43. However, the remaining statutes under Article 42 were left intact. Furthermore, in 2006, the Legislature enhanced the penalties for opening graves and body stealing from class E felonies to class D felonies and the penalty for unlawful dissection from a misdemeanor to a class E felony (see, L. 2006, ch. 346).

Defendants focus on the title of Article 42, Title II - "Autopsy and Dissection," and argue that such acts did not occur here based on the definition of those terms. "The text of the statute must take precedence over its title. While a title or heading may help clarify or point the meaning of an imprecise or dubious provision, it may not alter or limit the effect of unambiguous language in the body of the statute itself" (Squadrito v Griebsch, 1 NY2d 471, 475 [1956]). "The character of a statute is to be determined by its provisions, and not by its title, . . . but when its language is ambiguous and doubtful, resort may be had to its title, and the occasion of its enactment, to explain an ambiguity in its terms" (People v O'Brien, 111 NY 1, 59-60 [1888]). "There can be no dispute that the object of a statute is to be determined by its provisions, and not merely by its title . . ." (Society of Plastics Industry, Inc. v City of New York, 68 Misc 2d 366, 377 [Sup. Ct. NY County, 1971] [citation omitted]). Defendants improperly seek to restrict the unambiguous text of the PHL Article 42 crimes.

The testimony of the various witnesses at the Grand Jury and the documentary evidence [*2]refutes any indication that anatomical gifts under PHL Art 43 were made in this case. There were no "donors" involved (see, PHL § 4300 [3]). The testimony of the various witnesses and the documentary evidence showed that no consent to the taking of body tissue, bones, and blood was requested of the next of kin as would be required if an anatomical gift were made. Furthermore, the consent documents, which were submitted to companies accepting bone and tissue, were concocted of false information to make it appear as if anatomical gifts had been made. At the time tissue, bone and blood were obtained from the deceased, the deceased were located at various funeral homes. In exchange for a fee, the funeral director defendants (Gayton, Bajter, and Gano) allowed the other defendants (Knapp, Deats, Vickers and Sloyer) access to the bodies of the deceased, without informing the next of kin. Finally, in many instances, the deceased had diseases or conditions at the time of their deaths that would render them inappropriate for donating anatomical gifts.

Defendants' reliance on Colavito v New York Organ Donor Network, Inc., 8 NY3d 43 (2006) and Nicoletta v Rochester Eye and Human Parts Bank, Inc., 136 Misc 2d 1065 (Supreme Ct. Wayne County, 1987) is misplaced as those cases are distinguishable on their facts. Both are civil actions. Colavito involved a legitimate donor gift of a kidney to a specified donee. Nicoletta involved a civil action for damages as a result of a purported wife giving written consent at the hospital to donation of the deceased's eyes.

Upon review of the statutes, the defendants' motions and memoranda of law, the People's responding affirmations and memoranda of law, and the Grand Jury minutes and documentary evidence, the Court determines that the crimes under PHL Article 42 of body stealing, opening graves, and unlawful dissection of a human body were properly charged in the indictment.

II.Inspection of Grand Jury Minutes

On a motion to dismiss an indictment pursuant to CPL 210.20 (1) (b), the evidence before the Grand Jury is examined for legal sufficiency, i.e., to determine whether there is competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10 [1]; see, People v Deegan, 69 NY2d 976, 978-979 [1987]). The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (People v Jennings, 69 NY2d 103, 114 [1986]; see, People v Galatro, 84 NY2d 160 [1984]). Even in a wholly circumstantial evidence case, the standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes (People v Deegan, supra, at 979). That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference (id.; see, People v Bello, 92 NY2d 523, 525-526 [1998]). Under that standard of review, all questions as to the quality or weight of the proof should be deferred (People v Jennings, supra, at 115; see, People v Galatro, supra, at 164).

A Grand Jury need not be instructed with the same degree of precision required for a petit jury (see, People v Calbud, 49 NY2d 389, 394 [1980]) and a prosecutor has discretion in giving instructions (see, CPL 190.30 [7]; People v Darby, 75 NY2d 449 [1990]; People v Santmyer, 255 AD2d 871 [1998], lv denied 93 NY2d 902 [1999]). In most instances, the prosecutor satisfies his or her obligation to instruct the Grand Jury by reading the appropriate provisions of the Penal Law (People v Calbud, supra, at 394-395; People v Douglas, 288 AD2d 859, lv denied 97 NY2d 681 [*3][2001]). The prosecutor is not required to seek out evidence favorable to the defendant or present all their evidence tending to exculpate the accused (see, People v Mitchell, 82 NY2d 509, 515 [1993]; People v Lancaster, 69 NY2d 20, 27 [1986]; People v Valles, 62 NY2d 36, 38 [1984]).The Court fully examined the stenographic minutes of the Grand Jury proceeding and the documentary exhibits presented and denies dismissal or reduction of the indictment against

defendant. The proceeding was not defective by reason of any improper, incomplete or incorrect instructions given to the Grand Jury or by reason of any other defect in the proceeding. The jury was fully charged with respect to the principles of law that were required for this particular case. The Court concludes that the evidence was legally sufficient to establish the offenses charged, except for the 179th Count. Competent evidence, which if accepted as true, would establish every element of the offenses charged (see, People v Mikuszewski, 73 NY2d 407 [1989]), except for the 179th Count. Dismissal of an indictment is an exceptional remedy and it is not warranted in this case (see, People v Darby, supra). Therefore, defendants' motions to dismiss the indictment are denied. The 179th Count is reduced to scheme to defraud in the second degree (Penal Law § 190.60).

Defendants' requests for release of a copy of the Grand Jury minutes are denied (see, Matter of Brown v Rotker, 215 AD2d 378, lv denied 86 NY2d 706 [1995]).

III.Search Warrant

Defendant Bajter moved to suppress tangible evidence seized pursuant to a search warrant for Profetta Funeral Home on the basis that no PHL Article 42 was inapplicable and that the search warrant was issued without probable cause. The People opposed suppression.

The Court must determine whether there was a substantial basis for the magistrate's conclusion that probable cause existed (People v Castillo, 80 NY2d 578, 585, cert denied 507 US 1033 [1992]; People v Johnson, 66 NY2d 398, 405 [1985]). To establish probable cause, an application must provide the issuing magistrate with information to "support a reasonable belief that evidence of a crime may be found in a certain place" (People v McCulloch, 226 AD2d 848, 849, lv denied 88 NY2d 1070 [1996]).

As set forth above, the PHL Article 42 is applicable. Additionally, the affidavit of Diana M. Cogan, an investigator with the New York State Police, provided probable cause that evidence of PHL Article 42 crimes may be found at the Profetta Funeral Home. Her affidavit detailed the ongoing investigation into the taking of human bone, tissue and skin from cadavers at funeral homes and that approximately 17 of these incidents occurred at the Profetta Funeral Home. The Court concludes that the search warrant application provided a substantial basis for the issuing court's conclusion that probable cause existed (see, People v Harper, 236 AD2d 822, lv denied 89 NY2d 1094 [1997]; see also, People v Markiewicz, 246 AD2d 914, 915; lv denied 91 NY2d 974 [1998]). Therefore, Bajter's motion to suppress evidence obtained pursuant to the search warrant is denied in its entirety.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

January 25, 2008

____________________________________ [*4]

Hon. Joseph D. Valentino

Justice Supreme Court

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