People v Nematov

[*1] People v Nematov 2021 NY Slip Op 50422(U) Decided on May 14, 2021 Supreme Court, Kings County Del Giudice, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2021
Supreme Court, Kings County

People of the State of New York, Plaintiff,

against

Javokhir Nematov, Defendant.



IND-70704-21



Jack G. Goldberg, Esq. for Mr. Nematov

A.D.A. Robert Schwartz, Esq. for the People of the State of New York
Vincent M. Del Giudice, J.

The defendant moves this Court to inspect the Grand Jury minutes and, upon such inspection, seeks dismissal of the instant indictment, challenging the legal sufficiency of the evidence presented, the propriety of the legal instructions provided, and the manner of the presentation. This Court conducted an in-camera review of the Grand Jury minutes and finds as follow.

It is well established that the law requires the People to present legally sufficient evidence that there is reasonable cause to believe that a crime was committed, and that the defendant committed that crime. The burden of proof for a Grand Jury proceeding is not beyond a reasonable doubt, but rather that the People must make a prima facie showing utilizing legally admissible evidence. See People v. Pelchat, 62 NY2d 97; People v. Calbud, Inc., 49 NY2d 389. Said burden, of introducing legally admissible evidence, was not satisfied by the government in this case. Moreover, this Court also finds that the proceedings were defective within the meaning of Criminal Procedure Law (hereinafter: C.P.L.) § 210.35(5).

There is no dispute that the People enjoy broad discretion when determining how to present a case to the Grand Jury (see People v Rockwell, 97 AD2d 853 [3rd Dept, 1983]). "The prosecutor's discretion in presenting the case to the Grand Jury, however, is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also see that justice is done; 'as a public officer he owes a duty of fair dealing to the accused and candor to the courts' (People v Pelchat, 62 NY2d 97, 105).". People v Lancaster, 69 NY2d 20, 26 (1986). "The District Attorney's duties as a public officer are quasi-judicial in nature and in the performance [*2]of his duties he must not only be disinterested and impartial but must also appear to be so." (People v Dzeloski, 161 Misc 2d 867, 868-9 [Bronx Co Sup Ct, 1994], citing People v Lofton, 87 Misc 2d 572 [Kings Co Sup Ct, 1975]).

During the Court's review of the instant presentation, this Court observed that the assistant district attorney made several fatal errors, proffering legally inadmissible evidence before the Grand Jury, thereby unduly prejudicing the defendant and deriving him of a fair proceeding pursuant to Article 190 of the C.P.L.

In regard to the incident that was alleged to have taken place on December 11, 2020, the People offer insufficient, legally admissible evidence to establish that it was the defendant who committed the charged crimes. The People merely offered a hearsay statement by their complainant that the complainant later learned the alleged assailant's name to be that of the defendant.

In addition, the People improperly admitted hearsay testimony of a police detective witness' observations of the events depicted in video surveillance, which the witness watched after-the-fact, not being present to observe the incident in real time.

Finally, and most importantly, in regard to the incidents of December 11, and December 23, 2020, the People admitted evidence of a knife recovered from the person of the defendant, when the defendant was the subject of a vehicle stop for operating a vehicle with tinted windows, that were alleged to be too dark. This vehicle stop was conducted by the homicide detective on March 5, 2021 [FN1] , approximately three months after the first charge criminal transaction for an alleged slashing and two and a half months after the second charged criminal transaction for the alleged stabbing homicide of Tyler Nichols. No facts were admitted linking the knife recovered by the homicide detective during the vehicle stop to either of the incidents where the defendant is alleged to have wielded a knife. The presentation of this evidence serves no other conceivable purpose, other than to establish that the defendant has a propensity to be in possession of knives, resulting in undue prejudice against the defendant.

Assuming, in some way the admission of the knife recovered during the vehicle stop served some legitimate purpose, its prejudicial value in this context vastly outweighs the probity. " 'Even if (the evidence is) technically relevant for some other legitimate purpose, Molineux evidence will not be admitted if it is actually of slight value when compared to the possible prejudice to the accused' (People v Arafet, 13 NY3d 460, 465 [2009]). As stated, evidence may not be admitted to show that a defendant has a propensity to commit a certain type of crime, as such evidence has no legitimate basis for admission (See Alvino, 71 NY2d at 253).". People v Leonard, 29 NY3d 1, 7 (2017) (emphasis added).

Here the above-described issues were not cured with the admission of other legally competent evidence. C.f. People v Huston, 88 NY2d 400, 409 (1996) (the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment); c.f. People v Kappen, 142 AD3d 1106 (2d Dept, 2016) (Although the prosecutor admitted impermissible evidence during the Grand Jury proceeding, the indictment [*3]was based upon sufficient, independent evidence); and c.f. People v Johnson, 165 AD3d 1168 (2d Dept, 2018) (Improper evidence was introduced during the Grand Jury proceeding as an evidentiary error and not part of a nefarious design to deliberately cause unfairness to the defendant, allowing the indictment to stand).

As such the defendant's motion for dismissal of the instant indictment is hereby GRANTED pursuant to C.P.L. § 210.20(1)(c). Nevertheless, this Court authorizes the People to resubmit the charges to another Grand Jury pursuant to C.P.L. § 210.20(4).

This constitutes the decision, opinion and Order of this Court.

Hon. Vincent M. Del Giudice

Judge of the Court of Claims

Acting Supreme Court Justice

Dated: May 14, 2021

Brooklyn, New York Footnotes

Footnote 1:The testifying detective erroneously stated the date of the vehicle stop was March 5, 2020, however the assistant district attorney charged the Grand Jury with alleged crimes resulting from the vehicle stop attributed to March 5, 2021. Upon review of the Grand Jury materials, in their entirety, it is clear the testifying witness misspoke as to the year of the vehicle stop.