People v Martz

[*1] People v Martz 2016 NY Slip Op 50280(U) Decided on March 8, 2016 County Court, Hamilton County Feldstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2016
County Court, Hamilton County

The People of the State of New York, Plaintiff,

against

John K. Martz, Defendant.



19-2015



APPEARANCES:

For the People:Hon. Marsha K. Purdue

District Attorney for Hamilton County

For the Defendant:Lisa A. Burgess, Esq.
S. Peter Feldstein, J.

Defendant, John K. Martz, was indicted on December 1, 2015, charged with two counts of Criminal Sexual Act in the First Degree in violation of §130.50(1) of the Penal Law of the State of New York; one count of Criminal Sexual Act in the First Degree, in violation of §130.50(3); two counts of Sexual Abuse in the First Degree, in violation of §130.65(1); one count of Sexual Abuse in the First Degree, in violation of §130.65(3); and two counts of Incest in the First Degree in violation of §255.27. By omnibus motion dated January 22, 2016, he has moved to dismiss this indictment, together with other relief sought in the alternative. By Affirmation filed February 5, 2016, the People oppose that relief, but have consented to the Court's review of the Grand Jury minutes herein. Defendant, by letter of counsel dated February 29, 2016, has declined to submit a Reply.

The Court has reviewed in detail the Grand Jury minutes submitted. Upon that review it is clear that there exists a preliminary issue which requires dismissal and the opportunity for resubmission of the matter to a new Grand Jury. Specifically, 16 of the grand jurors indicated to the District Attorney that they had some degree of prior knowledge or relationship with either the Defendant or one or more of the witnesses. The District Attorney conducted a voir dire examination those jurors, and elicited from most of them sufficient and appropriate assurances that they would be able to put their knowledge or prior relationships with the individual in question aside, and be able fairly to decide the issues before them. Two prospective jurors were discharged (including one for health reasons). Unfortunately, at the very outset of the process, the District Attorney failed clearly to elicit the necessary assurances from three of the jurors who ultimately heard evidence, deliberated, and voted.

Once a grand juror raises an issue of knowledge of or relationship to a party or witness in the impending presentment, a clear and critically important duty falls upon the presenting prosecutor. As the Third Department Appellate Division has instructed: ". . . the prosecutor, who wields substantial control over the [g]rand [j]ury' and has a duty of fair dealing', should ensure fairness and, if there is any doubt with regard thereto, bring the potential bias to the attention of the court or otherwise excuse the grand juror." People v. Revette, 48 AD3d 886, 887 (citations omitted). What is required of the prosecutor, if neither discharge of the juror nor engagement of the Court into the issue is to be triggered, is to elicit —where appropriate— "a clear and direct response from the grand juror specifically relating an ability to remain fair . . ." (id. at 888), notwithstanding the particular knowledge or relationship at issue. Thus, the voir dire of the juror must be sufficient to determine "whether it was reasonable to expect that she could and would set aside that knowledge and decide the case solely on the basis of the evidence submitted to the Grand Jury." People v. Cipolla, 163 Misc 2d 144, 148. Put another way, the prosecutor needs to elicit from the jurors in question a clear statement that the potentially disqualifying issue "would not in any way affect their evaluation of the evidence and ultimate determinations relative to the charges presented against the defendant . . ." People v. Farley, 25 Misc 3d 274, 277.

The issues raised by the Grand Jurors in questioning by the District Attorney in this instance were not per se disqualifying; that is to say, those issues were clearly of the sort that might have been resolved by a proper voir dire by the District Attorney. Indeed, each of the jurors in question, after being examined with respect to the Defendant, was asked about potentially disqualifying relationships with prospective witnesses, and each gave appropriate assurances of impartiality. But when questioned about relationships with or knowledge of the Defendant, the first three Grand Jurors questioned simply did not give responses stating clearly their ability to serve fairly and impartially.

The very first grand juror questioned, when asked if her knowledge of the Defendant which arose from contact in the community would "affect [her] ability to make a . . . fair determination of the charges that are going to be placed against him [FN1] " responded "I don't believe it will." Grand Jury transcript, p.8. No further clarification or assurance was sought, and this degree of uncertainty is not acceptable.

The next Grand Juror had been the defendant's classroom teacher. When asked if that fact would impair her ability to be fair, she answered, "I don't know." Id., p.9. Pressing the point, the District Attorney asked, "Do you think that because you knew him as a student you would not be able to make a fair determination?", to which the juror again replied, "I don't know" Id., p.10. Further questioning on the basis of the Grand Juror's familiarity with the Defendant led to these final exchanges:

"Ms. Purdue: And did you have any issues that would affect your determination today on charges that may be pending against him?

Grand Juror: Uh-huh.

Ms Purdue: So do you think maybe you could act impartially then on charges that are pending against him?

Grand Juror: Uh-huh. Yes." Id, pp.10-11.

There is no further colloquy on the issue with that juror. It is clear to this Court that an affirmative response to the question, "do you think maybe", falls fatally short of the sort of unequivocal statement required of a juror with a potentially disqualifying relationship.

The next juror questioned also indicated knowledge of the Defendant gained through teaching at his school. Asked whether that fact would impair her ability to act fairly and impartially, she answered, "I don't think so." Id., p.11. After further inquiry, the District Attorney asked what appears to the Court an entirely insufficient final question on the issue: "Okay. So you think you could act impartially during the evidence? Yes?" Id., p.12. It is simply not possible to conclude from the juror's affirmative response to this question either that she was free from the sort of bias which the Revette Court cites as a trigger requiring further inquiry, or that she could act with respect to the full duties of evaluation and determination required of her, as highlighted in Cipolla and Farley.

Once these initial three inadequate voir dires of jurors were completed, the District Attorney conducted the remaining inquiries adequately. But permitting these three insufficiently vetted jurors to sit, without further inquiry either by herself or by the Court, the District Attorney fatally undermined the proceedings. This Court is constrained to order dismissal with leave to represent these most serious charges. That young and vulnerable witnesses must now provide their most disturbing testimony to a new set of strangers is not a circumstance lost on this Court; but fairness to the defendant and to the process itself requires this outcome.

The remaining issues raised on Defendant's Omnibus motion having been rendered moot as a result of the dismissal of the indictment, the Court declines to examine them at the present time.

While this Indictment must be dismissed, leave is hereby granted to re-present the matter before a new Grand Jury (see CPL §§210.20(1)(c), 210.35, 210.20(4) and People v. Grafton, 115 AD2d 952).

It is so ordered.

Dated

S. Peter Feldstein, County Judge

Footnotes

Footnote 1:The Court notes in passing the potentially prejudicial phrasing of the question, with its implication that the Grand Jury was expected, in fact, to bring such charges.