People v Stahl

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[*1] People v Stahl 2011 NY Slip Op 51150(U) Decided on May 26, 2011 County Court, Essex County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2011
County Court, Essex County

The People of the State of New York,

against

Daniel Stahl, Defendant



10-066-I

 

Kristy L. Sprague, Esq., Essex County District Attorney, (Michelle A. Bowen, Esq., of counsel), Elizabethtown, New York.

Brian P. Barrett, Esq., Lake Placid, New York, for the defendant.

Richard B. Meyer, J.



Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or [*2]reduction of an indictment, granting discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief.

The defendant is charged by a six-count indictment consisting of the crimes of rape in the first degree (Penal Law §130.35[2]), a class B violent felony, sexual abuse in the first degree (Penal Law §130.65[2]), a class D violent felony, criminal sexual act in the first degree (Penal Law §130.50), a class B violent felony, and three counts of facilitating a sex offense with a controlled substance (Penal Law §130.90), a class D violent felony, one for each of the other three counts. The charges[FN1] arise out of incidents alleged to have occurred during and between the late evening hours of January 15, 2010 and the early morning hours of January 16, 2010 in the Village of Lake Placid, Essex County.

The defendant moves to dismiss the indictment on the grounds that (1) the indictment is defective (CPL §210.20[1][a], §210.25), (2) the grand jury proceeding was defective (CPL §210.20[1][c], §210.35), and (3) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b], §210.30). The defendant also moves to inspect the grand jury minutes (CPL §210.30). The court has considered the following papers in support of the motion: notice of motion dated February 28, 2011; affirmation of Brian P. Barrett, Esq. dated February 28, 2011, with exhibits 1 and 2; affidavit of Kimberly Beth Rivellini sworn to March 30, 2011. In opposition, the Court has considered an affirmation of Assistant District Attorney Michelle A. Bowen, Esq. and a memorandum of law, both dated March 17, 2011.

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). Also, any defect in an indictment may be cured by a bill of particulars (see People v. Jackson, 46 NY2d 721, 413 NYS2d 369, 385 NE2d 1296). The Court has examined the indictment, as well as the bill of particulars, and finds that it fully complies with CPL §200.50(7).

The defendant's motion to inspect the grand jury minutes is granted. Upon inspection, the minutes and voting sheet filed with the Court reveal that a quorum of at least sixteen grand jurors were present during the presentation of evidence and at the time the assistant district attorney [*3]instructed the grand jury on the law, and at least 12 of those grand jurors voted to indict the defendant. Also, the instructions were not defective as a matter of law, although this Court notes that the instructions relative to the charge of facilitating a sex offense could have been more clear.

"CPL 210.20(1)(c) provides that a charge must be dismissed when the proceedings as a whole are defective within the meaning of CPL 210.35. Pursuant to CPL 210.35(5), a Grand Jury proceeding is defective when [t]he proceeding otherwise fails to conform to the requirements of [CPL 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result'" (People v. Corrigan, 80 NY2d 326, 329, 590 NYS2d 174, 176, 604 NE2d 723, 725). "The exceptional remedy of dismissal is . . . warranted only where a defect in the indictment created a possibility of prejudice" (People v. Huston, supra at 409, 646 NYS2d at 74, 668 NE2d at 1368), a standard which "is very precise and very high" (People v. Darby, 75 NY2d 449, 455, 554 NYS2d 426, 553 NE2d 974), and actual prejudice need not be shown (CPL 210.35[5]; see People v. Sayavong, 83 NY2d 702, 709, 613 NYS2d 343, 347, 635 NE2d 1213, 1217). However, "not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective", and "isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice" (Id., at 409, 646 NYS2d at 75, 668 NE2d at 1368).

Here, the charges all involve alleged sexual conduct by the defendant with a female who purportedly was physically helpless due to the defendant's administration of Xanax (Alprazolam) to her without her knowledge or consent. Review of the grand jury minutes reveals that the only evidence connecting the drugs found in the alleged victim's system and Xanax consisted of an uncertified report which did not comply with subdivisions 2 or 2-a of CPL §190.30. Also, a Lake Placid Village police officer was improperly allowed to testify regarding (1) the sexual abuse examinations conducted of the alleged victim since the officer was not in the room at the time of such examinations, (2) date rape drugs, as the officer admitted she had no training about them and no evidence was presented as to her experience with such substances, (3) the officer's opinion on the intoxicated or drug-impaired state of the alleged victim as there was no foundation for such testimony, and (4) the hearsay statement of a witness concerning an alleged text message the witness claimed to have received from the defendant. It can hardly be argued that these errors did not create a possibility of prejudice to the defendant sufficiently egregious to warrant dismissal.

The defendant's motion to dismiss all counts of the indictment must be, and hereby is, granted, subject to the right of the People to resubmit the charges to a grand jury within thirty (30) days hereof (CPL §210.20[6][b]). The defendant's remaining contentions need not be reached.

Pursuant to CPL §210.45(9), the defendant: (a) is hereby released on bail in the amount of $25,000.00 cash or $50,000.00 insurance company bail bond pending resubmission of the charges to a grand jury; and (2) shall appear in this action whenever his attendance may be required and shall render himself at all times amenable to the orders and processes of this or any other court having jurisdiction. The bail bond heretofore posted shall be deemed posted in compliance with this directive provided that the insurer files with the clerk of this Court written confirmation that such [*4]bond continues to constitute security for the defendant's appearance hereunder. This securing order shall remain in effect until the first to occur of any event listed under CPL §210.45(9)(a)-(d).

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer, J.C.C. Footnotes

Footnote 1:The defendant is charged with class B and D violent felony offenses. a first time offender of a class B violent felony sex offense is subject to a maximum determinate sentence of 25 years, plus up to 20 years of post-release supervision and a $30,000 fine. For a class D violent felony sex offense, the maximum determinate sentence is 7 years, plus up to 10 years of post-release supervision and a $5,000 fine.