People v Caselnova

[*1] People v Caselnova 2023 NY Slip Op 51070(U) Decided on September 20, 2023 Supreme Court, Saratoga County Murphy, III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2023
Supreme Court, Saratoga County

The People of the State of New York,

against

Vito E. Caselnova, Defendant.



Ind. No. H-082-2023V


For the People:
Alan M. Poremba, First Assistant District Attorney
Saratoga County Office of the District Attorney

For Defendant:
Gregory J. Teresi, Esq.
Attorney for the Defendant James A. Murphy, III, J.

During the February 2023 Term of the Grand Jury, the People presented the matter of, "An ongoing investigation into an incident that occurred on Broadway and Caroline Street in Saratoga Springs on November 20, 2022", as described by the Prosecutor. At the time of the presentation on March 8, 16, 17, 21 and 23, no one had been charged with any crime. At the conclusion, Vito Caselnova was charged by way of an eight count indictment with Attempted Murder in the Second Degree [PL §§ 110.00/125.25(1)], Assault in the First Degree [PL §120.10(1), Menacing in the Second Degree [PL §120.14(1)], Reckless Endangerment in the Second Degree [PL §120.20], Possession of a Firearm in a Sensitive Location [PL §265.01(e)(sic)], Possession of a Large Capacity Ammunition Feeding Device [PL §265.02(8)] (2 counts) and Harassment in the Second Degree [PL §240.26]. Three men from Utica, Alex Colon, Darius Wright, and Christian Castillo, were each charged, by Prosecutors Informations in the City of Saratoga Springs, with Attempted Assault in the Third Degree [PL §§110/120.00(1)].

Defendant filed a Notice of Motion and Affirmation in Support of his Omnibus Motion and Opposition to People's Motion for Release of Judicially Subpoenaed Medical Records (DOM) on June 30, 2023 followed by a Supplemental Affirmation in Support of Omnibus Motions dated July 14, 2023. The People filed an Affirmation in Opposition (AIO) to defendant's motions dated August 4, 2023. Defendant seeks the following relief:

I. DEFENDANT SEEKS DISMISSAL OF INDICTMENT FOR ALLEGED INSUFFICIENCY OF GRAND JURY EVIDENCE AND DEFECTIVE PROCEEDINGS

Defendant moves this Court to inspect the grand jury minutes and, upon such inspection, to dismiss the counts charged based on a claim that the evidence presented was legally insufficient to support the charges, the proceeding was defective due to the Prosecutor's failure to [*2]properly instruct the grand jury on the law and the integrity thereof was impaired to such a degree prejudice to the defendant may have resulted under Criminal Procedure Law, Articles 190, 200 and 210.

A) Grand Juror's Letter

On March 28, 2023 defendant appeared with counsel, was arraigned on the indictment, and entered a plea of not guilty to all counts. On Friday, March 31, 2023, the Court received an anonymous letter from a Grand Juror addressed to: Judge Hearing Grand Jury. The letter asserted the grand jury presentation was complicated, the law obtuse and deliberations were hurried. The juror cited to "off the record" discussions between the Assistant District Attorney and grand jurors regarding the scheduling and the jurors' availability, for his/her belief that there was undue pressure to come to a decision.[FN1]

Upon receipt of the letter the Court considered, sua sponte, the issue as to whether the letter fell under the purview of Penal Law Section 215.70 and its companion statute Criminal Procedure Law Section 190.25(4). Specifically, the court considered whether the communication related to "the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept secret" and after due deliberation, determined it did not. The letter does not reveal any testimony, in whole or in part, of any witness, the sum or substance of any testimony or evidence, the nature of the deliberations, the vote of the jurors, nor does it identify any witness, suspect, or grand juror. The Court determined the grand juror's disclosure of his/her dissatisfaction with the process and his/her feeling of pressure is not analogous to the dissemination of substantive content of the proceedings, deliberations or vote of the jurors.

Even if the Court had determined the letter fell within the purview of CPL §190.25(4), it is well settled, the secrecy of grand jury proceedings is not absolute and the determination of whether disclosure of grand jury matters should be permitted is addressed to, and rests in, the court's discretion. (Matter of Carey, 45 Misc 3d 187, 189 [Sup Ct, Wyoming County 2014]). Furthermore, the general rule of secrecy should not preclude the disclosure of, nor prevent an inquiry into, an alleged violation of a mode of proceedings error or alleged misconduct of a prosecutor. (see generally Weaver v Brenner, 1995 US Dist LEXIS 19036 [NDNY Nov. 18, 1995, 92-CV-0246 TJM] citing People ex rel. Hirschberg v Bd. of Sup'rs, 251 NY 156, 160 [1929])

Upon this determination, the Court provided the letter to the parties potentially affected by its content, on the same day in which it was received. The following day (Saturday), the People responded to the Court in two separate emails with an attached letter, requesting an order prohibiting further dissemination of the letter. A conference was held with the parties on Monday morning, April 3, 2023. As a result of that conference, the Court filed the Grand Juror's letter, the Court's transmittal letter to the parties, and the People's response with the Clerk of the Court under seal.

After the conference on Monday, the Court, at the suggestion of the parties and in its [*3]capacity as supervisory judge over grand jury matters and Acting Supreme Court Justice, began an in camera inquiry of the grand jury panel. This inquiry took place over three days, April 3, 4 and 5, 2023.[FN2] The Court inquired of each grand juror, individually and anonymously, to explore the allegation that "off the record" conversations occurred, and undue pressure was imposed on the panel to come to a decision on the matters they were asked to consider. The Court queried as to each jurors' recollection of the overall presentation, any "off the record" conversations and the deliberation process. The Court clearly advised it was not interested in, nor should the jurors provide, any information regarding the testimony of witnesses, the sum and substance of deliberations, the vote, or the evidence. The Court also reviewed the grand jury minutes.

Apart from one juror, the recurring sentiment among the remaining grand jurors was; they were comfortable asking questions, the Prosecutor accommodated the jurors' schedules and availability, and they were given as much time as they needed to properly deliberate and perform their duties as grand jurors. The juror who expressed concern during the inquiry, acknowledged the ambitious schedule of the Prosecutor and technical problems with the presentation left him/her with a constant feeling of being behind schedule and rushed.

Any "off the record" conversations were limited to scheduling, scheduling conflicts, lunch breaks and bathroom breaks. There is no indication that the Assistant District Attorney conversed with some or all of the grand jurors regarding anything of substance including testimony of any witness, evidence, or the law without having such conversations recorded or transcribed.

Finally, but for the one, the grand jurors revealed they were given ample time to deliberate, and the decisions rendered by them were the natural consequence of their deliberations. They were neither constrained by time, nor pressured by the Prosecutor to conclude the matter. After the in camera inquiry of the grand jury panel and a review of the grand jury transcript, as it relates to the issues raised in the letter, the Court finds the grand jury proceeding was not defective within the meaning of CPL §210.35(5). Motion to dismiss on this ground is denied.

B) Statement of Facts

Before addressing the legal arguments regarding the substantive portion of the grand jury presentation, the Court acknowledges the widely divergent statement of facts proffered by the parties. It is necessary, however, to provide some factual background to properly frame the legal issues raised and therefore the Court has reviewed the testimony of 27 witnesses and more than 100 exhibits and ascertained the following.

On November 19, 2022, Vito Caselnova and his girlfriend, Cali Brown, traveled by Uber from Glens Falls to the City of Saratoga Springs(City) for dinner and drinks with another couple. Upon arrival in Saratoga Springs, the foursome ate dinner at a local restaurant followed by drinks at Caroline Street Pub, Tap and Barrel and the Bourbon Room. Caselnova, a part-time deputy with the Rutland County Sheriff's Department, forgot his wallet and identification at [*4]home but had in his possession his badge, a loaded Sig Sauer 9mm pistol with 12 or 13 rounds of ammunition, and a spare magazine containing an additional 15 rounds of ammunition.

Caselnova acknowledged consuming alcoholic beverages throughout the night. While at the Bourbon Room, their last stop of the night, Caselnova and his girlfriend argued about being out too late and trying to arrange for an Uber to drive them home. Because the defendant became argumentative and loud, the bouncer asked Caselnova and Brown to leave which they did at approximately 1:45 a.m. on November 20, 2022. Caselnova and Brown can be observed walking on Caroline Street and up and down Broadway on the City's video surveillance cameras.

After leaving the bar, Caselnova and Brown were approached by an unknown, unidentified man asking for either a lighter or cigarette which defendant said he did not have. When the man persisted, Caselnova kicked him in the groin area. Caselnova did not have an independent recollection of kicking the man but when shown street surveillance video depicting the interaction, he acknowledged his actions. (GJ Ex. No.2). From this point forward Caselnova and Brown can be seen intermittently separating and then reuniting from approximately 2:25 a.m. until immediately before the shooting incident at approximately 3:02 a.m.

In a parallel story line, that same night a group of people, most having grown up together in the Utica area, were celebrating the 30th birthday of Victor Vega. The celebration began at a restaurant in Clifton Park where Victor was joined by his friends, Alex Colon, Darius Wright, and Jonathan Rosado, along with three of Victor's sisters and two of their friends. After dinner, the group traveled to a strip club before heading north to the City of Saratoga Springs where they met up with more friends; Christian Castillo, Angel Ramos, Manuel Vasquez, Louis Luce, and David Delgado (collectively referred to as the "Utica group"). They went to Saratoga City Tavern and then to the Soundbar where they remained until approximately 2:49 a.m. on November 20, 2022. At that time, someone from the group had an argument with a security guard and the group, which included Alex Colon, was removed from the bar. Alex Colon acknowledged he consumed alcoholic beverages throughout the night.

On Grand Jury Exhibits 2 and 4, digital recordings from street cameras in the City of Saratoga Spring and the Marketplace shop on Broadway, Brown can be seen walking alone around 2:55 a.m., heading south on Broadway toward Caroline Street when she steps into an alcove just north of Caroline Street. A minute later, Colon and his group of friends (approximately 8-10 males) round the corner from Caroline and continue north on Broadway, where the group stops slightly north of the alcove. Colon continues up Broadway to his truck to start it and warm it up. While there, he retrieves his firearm, a Glock 19 loaded with 8 rounds of ammunition and one in the chamber, from his glove compartment. Colon had two additional, partially loaded, magazines in his truck each with a capacity of holding 10 rounds each.

Unbeknownst to Colon and Caselnova, because they had no prior knowledge of or interaction with the other, as Colon walks south on Broadway to return to the group near the corner of Broadway and Caroline Streets, Caselnova is walking behind him, on his phone, with his hood up, each unaware of the other. Caselnova avoids the Utica group, who are scattered across the sidewalk on Broadway, by walking toward the street, behind a bench, and then briefly disappears into the alcove with Brown. Caselnova and Brown return to the edge of the sidewalk, on Broadway to wait for an Uber and can be seen interacting with each other while the Utica group mingles with each other, just behind them, closer to the buildings at 3:00:02 a.m.

Manuel Vasquez can be seen leaving the group and heading north to his car "to pee" with [*5]"Arnell" keeping a lookout for him. (GJT 142) At 3:01:32 a.m. an Uber driver (not affiliated with any of the parties) pulls up to the curb near Caselnova and Brown who can be seen on the car's dash camera standing slightly in front of the car, on the passenger side. Colon and his friends can be seen in the background. (GJ Ex. 5).

In addition to the bird's eye view of the incident captured by Saratoga Springs City street cameras and the Marketplace video footage, the Uber dash camera footage offers front row seating to the incident which begins with an exchange of words and ends with an exchange of gunfire and three people shot. The altercation which gives rise to the serious charges contained in the indictment lasts less than 60 seconds.[FN3]

As Caselnova and Brown interreact in front of the Uber, Colon and his group begin to dissipate; two head south to a white jeep, one man follows behind, Manuel Vasquez and Arnell are near their car just north of Colon and Caselnova.(GJ Ex. #2) As Colon and Darius Wright begin to walk south past Caselnova, words are exchanged. Someone from Colon's group says, "take it down the street" to which Caselnova responds that he can take all of them on. (GJT 82-83)

Colon advances toward Caselnova and Brown, joined by Jonathan Rosado, Victor Vega, Christian Castillo, Louie Luce, and another man with the group. (GJ Ex. #2) Caselnova reaches into his coat pocket and takes his gun out, transferring it to his right hip, inserting it into a holster. The group continues to advance toward Caselnova who keeps his hand on his hip and backs up, stepping off the curb into the street.

Brown then steps toward Colon and strikes him in the head with her hand. Caselnova steps back onto the sidewalk and in between Brown and Colon. Colon is now being held back by his friend Jonathan Rosado. When he breaks free, Caselnova extends his left arm out and holds up his hand in front of Colon. Colon then swings at Caselnova who turns away from him and ducks. Colon falls to the pavement and his firearm falls to the ground. Brown shouts, "Vito, gun". A white jeep swerves toward the curb, comes to a halt just in front of the Uber and two men jump out and advance toward Caselnova and Brown.

Simultaneously while Johnny Rosado is helping Colon to his feet and handing him back his firearm, Caselnova is attacked from behind by Christian Castillo and Darius Wright. Castillo punches Caselnova in the side of his face and Wright begins punching the back of Caselnova's head as he is bent over, face down on the hood of the Uber. Caselnova pulls his gun from his hip as Wright and Castillo continue to punch Caselnova about the head. Castillo lands 5 punches and Wright lands 3. Caselnova can be seen unholstering his gun while being attacked on the hood of the car.

At this time, the Uber reverses causing Caselnova to stumble into the road. As he straightens up and regains his balance, he turns back toward the sidewalk with his gun drawn fanning it toward the Utica group on the sidewalk. The driver of the white jeep lunges at Caselnova trying to grab him by the shoulder, then falls to the ground. This causes Caselnova to spin toward him in the street, with gun still drawn, he quickly backs up onto the sidewalk with his back now toward the buildings pointing his gun toward the street in the direction of Colon and others from group near the white Jeep.

Meanwhile, as Caselnova moves from the street to the sidewalk, Colon has his back to Caselnova while Rosado is handing him back his firearm. As Caselnova moves north on the sidewalk with his back to the buildings, Colon turns and points his gun in the direction of Caselnova. Colon and Caselnova exchange gunfire and each are struck by the other. . The People assert Colon and Caselnova fired simultaneously. Defendant alleges Colon fired first. After being shot, Colon runs behind the white jeep.

Saratoga Springs Police Officers who were located on Caroline Street are advised of a fight on Broadway, hear gunfire, and immediately respond on foot. As they run and turn north on Broadway, they see Caselnova with a gun and repeatedly yell "Drop the gun!". One officer yells it more than 8 times. As defendant fans his gun down the street, in the direction of the officers, he fires, and three officers fire their guns striking Caselnova several times causing him to fall to the ground and striking Brown in the arm.

Colon, Caselnova and Brown were taken to the hospital. Colon suffered 7 gunshot wounds, including exit wounds. (GJ Ex. 8) Caselnova was shot twice by Colon, three times by police and suffered a total of 10 gunshot wounds which include entrance and exit wounds. (GJT 628; GJ Ex. 11) Both Colon and Caselnova sustained life threatening injuries and were hospitalized for several days.

At the time of the incident, both Caselnova and Colon possessed valid New York State conceal carry pistol licenses identifying their respective firearms. Colon's was issued in Herkimer County on September 20, 2022 and Caselnova's was issued in Warren County on January 11, 2022. Caselnova had a Blood Alcohol Content (BAC) of .132% and Colon had a BAC of .136%.

C) Instructions to the Grand Jury

Defendant challenges the grand jury proceeding alleging incomplete, improper, and confusing instructions on the defense of justification under Penal Law Section 35.15(2)(use of deadly physical force in defense of a person) and Penal Law Section 35.15(2)(b) (use of deadly physical force in defense of a person to prevent a felony). Specifically, defendant asserts the People's instructions were improper in that; 1) the justification instructions were not given prior to instructing on the elements of the crimes to which they applied, 2) the instruction regarding the initial aggressor rule was confusing, 3) an instruction on "unlawful physical force" was necessary when a Grand Juror asked for a definition of that term, 4) an instruction on defendant's permissible use of physical force in defense of a person in an attempted kidnapping, rape or criminal sexual act was not given, 5) an instruction on defendant's withdraw from the encounter was necessary, 6) the instruction on defendant's duty to retreat was unnecessary, 7) it was improper to instruct that a single punch does not typically constitute deadly physical force, and 8) the instructions were erroneous because they only identified Colon, individually, as the one threatening deadly physical force rather than the group of men who were surrounding him.

It is true a grand jury need not be instructed on the law with the same degree of precision that is required when a petit jury is instructed; it is sufficient if the District Attorney provides the grand jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime. Not every error in charging requires dismissal. (People v Calbud, Inc., 49 NY2d 389, 392 [Court of Appeals 1980]) Only when the instruction possibly [*6]prejudices a defendant is dismissal warranted. ( People v Di Falco, 44 NY2d 482, 487-488)

Penal Law Article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 NY2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added). (People v Goetz, 68 NY2d 96, 105-106 [1986])

Penal Law Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * * or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery" (emphasis added). Id.

Deadly physical force is defined as physical force which, under the circumstances in which it is used, is readily capable of causing death or other physical injury. (Penal Law §10.00[11]); People v. Mothon, 284 AD2d 568 (3d Dept. 2001). Additionally, deadly physical force can be used against another to defend against deadly physical force if one is not the initial aggressor, except that even if he was the initial aggressor, he would be justified if he withdrew from the encounter and effectively communicated his withdraw to another person, but that person persisted in continuing the incident. Deadly physical force may not be used if defendant could retreat with complete safety. (Penal Law §§35.15[1][a]; 35.15[2]).

The standard used in determining whether deadly physical force is appropriate is that of the reasonable man in the situation in which the suspect found himself. First, the defendant must have actually believed that deadly physical force was about to be used against him [or someone else], and that the defendant's own use of deadly physical force was necessary to defend himself[or someone else] from it; and a "reasonable person" in the defendant's position, knowing what the defendant knew and being in the same circumstances, would have had those same beliefs. People v. Goetz, 68 NY2d 96 (1986)

A justification instruction is appropriate, where, viewing the evidence in the light most favorable to the defendant, a jury, based upon any reasonable view of the evidence, could decide that the defendant's actions were justified. People v. Watts, 57 NY2d 299, 301 (1982); People v. Vecchio, 240 AD2d 854 (3d Dept. 1997); People v. Perez, 213 AD2d 682, 683 (2d Dept.); lv. denied, 86 NY2d 739 (1995); Penal Law §35.15 (2)(a).

1) Defendant claims the order in which the justification instructions were given was improper.

The Court finds the order in which the People charged the justification defense in relation to the elements of the charged crimes in Counts One, Two, Three and Four does not warrant dismissal of the indictment. The instructions identified each of the elements of those crimes and clearly stated the burden of proving defendant was not justified lay solely on the People. The fact that the prosecutor instructed on the justification defenses after he explained the elements of the [*7]crimes does not prejudice the jury to such a degree dismissal of the indictment is necessary. (Calbud, supra at 392)

2) Defendant asserts the instruction regarding the initial aggressor rule was confusing.

Additionally, defendant's argument the instruction on the initial aggressor rule as related to Counts One and Two of the Indictment was confusing and misleading to the grand jury is also without merit. The People informed the grand jurors they were being asked to consider two different theories of justification for each of those counts. The Prosecutor then provided the Pattern Criminal Jury Instruction (CJI) for both defense of a person, which contains the initial aggressor rule and defense of a person to prevent a felony, which does not.

It was explained to the grand jury that each theory should be considered for both Count One and Count Two and if the grand jury found defendant was justified under either theory, for Count One, it must also find he was justified under Count Two. The Court finds the instructions were sufficient to advise the grand jurors of the application of the initial aggressor rule for each justification charge and as it relates to Counts One and Two. ( Calbud, supra at 392) Motion to dismiss the indictment on this ground is denied.

3) Defendant claims an instruction on "unlawful physical force" was necessary.

While being instructed on the defense of justification, the prosecutor explained, " under our law of justification, it is not sufficient that the accused honestly believed in his own mind that he was faced with defending himself or someone else against the use or imminent use of unlawful physical force from an individual committing or attempting to commit a kidnapping — I'm sorry, a robbery". A grand juror asked for the definition of "unlawful physical force" to which the prosecutor responded there wasn't one. (GJT 716) While not specifically defined in the statute or Pattern Criminal Jury Instruction, it would have been better practice for the prosecutor to explain, what constitutes "unlawful" deadly physical force as applied to this case and as suggested in CJI Justification PL §35.15(2) (footnote 3). Despite the lack of instruction, it does not rise to the level of error. Motion to dismiss on this ground is denied.

4) Defendant asserts an instruction on defendant's permissible use of deadly force to prevent an attempted kidnapping, rape or criminal sexual act was necessary.

Next, defendant argues, in addition to the justification instructions given to the grand jury on the use of deadly force in defense of a person and in defense of a person to prevent a robbery, the grand jury should also have been instructed on defense of a person to prevent a kidnapping or rape or criminal sexual act.[PL §35.15(2); PL §35.35(2)(b)]. It is well settled that if the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment. (see CPL 190.25 [6]; CPL 210.35 [5]; People v Valles, 62 NY2d 36, 38, 464 N.E.2d 418, 476 N.Y.S.2d 50 [1984]; People v Calbud, Inc., 49 NY2d 389, 395-396, 402 N.E.2d 1140, 426 N.Y.S.2d 238 [1980]). Where the evidence before the grand jury supports it, the charge on justification must be given (cf. People v Mitchell, 82 NY2d 509, 514-515, 626 N.E.2d 630, 605 N.Y.S.2d 655 [1993]; People v Lancaster, 69 NY2d 20, 27-28, 503 N.E.2d 990, 511 N.Y.S.2d 559 [1986], cert denied 480 U.S. [*8]922, 107 S. Ct. 1383, 94 L. Ed. 2d 697 [1987]; People v Torres, 252 AD2d 60, 65, 686 N.Y.S.2d 375 [1999]).

The People argue there is "no reasonable view of the evidence that a kidnapping or rape or other type of sexual assault occurred, or was even attempted" and therefore, the grand jury was not required to be instructed on the defense as it relates to prevention of those crimes. (AIO ¶140) This is a misstatement of what is required under the law. There need not be proof before the grand jury that such crimes occurred or were attempted, only that defendant reasonably believed another was committing or attempting to commit them. [PL §35.15(2)(b) emphasis added]

To that point, Caselnova testified that while waiting for the Uber he noticed the group of men and could see they were visibly upset or "at least trying to come across as intimidating". (GJT 624) He mentioned this to Brown and attempted to get some distance between them as the group shouted obscenities at them and continued to approach them. (Id.) Caselnova testified he stepped off the curb and reached for Brown because the men were closing the distance on them and then he stepped between the men and Brown. (Id.)

Caselnova continued, "In that moment, as I'm hitting the ground, I heard one of them say, 'Run his pockets. Run his pockets'. They said it twice. And again, this is all very rapid. I took that to mean that they were going to attempt to rob me in some sort of way. Knowing I had a firearm, I couldn't allow them to do that. At the same time, someone else said, 'Grab her'. Again, in the moment, it was very fast. I wasn't really sure what that meant, but I took it as they were — some attempt to harm Cali." (GJT 625) "And then, immediately after that,,...Cali shouted to me that there was a gun. She said, 'Vito, gun'". (Id.)

Caselnova further testified that, "based on what they were saying at the time, I did not want to — first of all, I didn't want to go into the street any farther into traffic, and I wanted to get in between me and them and Cali." (GJT 659-660)

Brown testified, "I was right in the middle of it. And that's when I turned and I see one of these kids, they have, like, a gun, and it wasn't in a holster. And it was a tan — it was a tan gun. And they pull it out and they say something. One of them says something to their friends, and it was, word for word, "Run his pockets and grab the girl." And they said, "Let's get out of here." (GJT 208) "I stood there because I was scared they were going to take me".(GJT 209)

Additional evidence before the grand jury included testimony that the Utica group attempted to verbally engage Brown before the assault, Caselnova physically placed himself between Brown and Colon and the men, Caselnova and Brown both heard someone yell "grab the girl" at the same time defendant is physically assaulted. (GJT 207; 624-625) The video evidence shows after the first punch is thrown, and defendant is face down on the hood of the Uber car, a white jeep swerves in front of the Uber, two men jump out and the driver rushes toward the melee. (GJ Ex.#5)

The People assert the evidence did not support a justification charge related to defense of another to prevent a kidnapping, rape, or criminal sexual act because the defendant's testimony was incredible. Specifically, the People direct the Court's attention to defendant's testimony that he "fell to the ground" when being assaulted which is contradicted by the Uber video showing he fell onto the hood of the car, not the ground. Because of this contradiction, the People assert "defendant's credibility and entire version of events" is called into question. (AIO ¶142) The People also speculate, that "defendant had not seen the jeep pull up because he was facing the opposite direction". (AIO ¶144) Direct testimony, however, shows defendant was aware of the [*9]white jeep's arrival on the scene when he testified that, a jeep had pulled up. (GJT 626) The Prosecutor never questioned defendant further about whether he had seen or heard the white jeep pull up. It is well settled law that the issues of fact and credibility of a witness are for the grand jurors to determine, not the prosecutor. (People v Batashure, 75 NY2d 306, 310 [1990])

The People should not have speculated that the defendant did not see the white jeep pull up because the defendant was facing the opposite direction, when the defendant testified, he did see the white jeep (GJT 626). Even if the prosecutor had not invaded the grand jury's province in determining credibility, the prosecutor's conclusion was based on a misstatement of the testimony of the defendant. It would have been reasonable to speculate that the defendant had not only seen the white jeep as he said, but also that he saw the two members of the Utica group jump out of the white jeep and rush toward him in his peripheral vision and felt the driver attempt to grab his arm. (GJ Ex. #5)

Moreover, the People claim the statement "grab the girl" is "utterly ambiguous" and could simply mean "hold the girl so she can't strike anyone again". (AIO ¶145) While "grab the girl" is analogous to "run his pockets", which prompted an instruction on justification in defense of a person to prevent a robbery, the statement cannot be isolated without consideration of the surrounding circumstances. ( Goetz, supra 96) Specifically, defendant's response to the advancing, intimidating group of men was to get in between Brown and the group,. Defendant then hears "grab the girl", Brown yelling "Vito, gun!", and sees the immediate arrival of the white jeep and two men jumping out of it. Rather than determining whether defendant reasonably believed another was committing or attempting to commit a kidnapping, rape or sexual assault, the Prosecutor improperly determined defendant was not credible and as a result found his version of the incident did not support the charge.

Viewing the evidence in the light most favorable to defendant, as we must (see People v Steele, 26 NY2d at 529; People v Ramirez, 118 AD3d 1108, 1112, 987 NYS2d 496 [2014]), and drawing all reasonable inferences in his favor, the Court finds that there is a reasonable view of the evidence from which the grand jurors could have concluded that defendant was justified in using deadly force against the victim to prevent a violent felony or attempt to commit a violent felony (robbery, kidnapping, criminal sexual act). (People v Ball, 154 AD3d 1060, 1061-1062 [3d Dept 2017]).

The Court finds a reasonable view of the evidence set forth above, suggests defendant reasonably believed others were committing or attempting to commit a kidnapping, rape, or criminal sexual act. The failure to instruct the grand jury on this potential defense, results in the proceeding being defective, mandating dismissal of the indictment. (see CPL 210.35 [5]; People v Padgett, 60 NY2d 142, 145 [1983])).

5) Defendant claims the instruction on defendant's withdraw from the encounter was necessary.

Defendant also contends because the grand jurors were instructed on the initial aggressor rule, they should also have been given an instruction on defendant's withdrawal from the encounter. The initial aggressor rule states, defendant would not be justified in using deadly physical force if he was the initial aggressor of deadly physical force, except, if he was the initial aggressor, his use of deadly physical force would be justified if he had withdrawn from the encounter and effectively communicated such withdraw to Colon and his group, but they [*10]persisted in continuing the incident by the use or threatened imminent use of unlawful deadly physical force. (see CJI Justification, PL§ 35.15(2), revised Jan. 2018; People v Williams, 112 AD2d 176, 490 N.Y.S.2d 854, 1985 NY App. Div. LEXIS 56468 (NY App. Div. 2d Dep't 1985).

The People, assert no reasonable view of the evidence supports such instruction because defendant testified, he put his hands up to defend himself, not withdraw, and the Uber video shows defendant's right hand was on his hip where he wore his gun in a holster. Defendant's testimony that he put his hand up to defend himself, rather than withdraw, does not preclude him from asserting an instruction on withdraw. "[I]nconsistency in claimed defenses or even between a defendant's testimony and a defense 'should not deprive [the] defendant of the requested charge' if the charge would otherwise be warranted by the evidence". (People v Butts, 72 NY2d 746, 750 [1988], quoting People v Padgett, 60 NY2d 142, 146, 456 NE2d 795, 468 NYS2d 854 [1983]; People v Zona, 14 NY3d 488, 493 [2010])

Here, when defendant is first approached by Colon and his group, after he transfers his gun from his coat pocket to his holster, he can be seen flipping his hood off his head, straightening his jacket, bouncing slightly on his feet, putting his hands up, then circling his arms as if he is preparing to fight and/or defend himself. He then places his hand over his gun, takes several steps backwards, off the curb, and into the street as the group continues to advance toward him. When Brown moves toward Colon, Caselnova then steps back onto the sidewalk and places himself in between Brown and Colon and the other men. At this point, defendant extends his left hand outward toward the group (as an officer would to stop traffic) and moves Brown behind him with his right hand before extending it forward palm open. Defendant's hand is not near his gun when Colon swings at him.

As stated above, the Court must consider the record in the light most favorable to defendant (see People v Padgett, 60 NY2d 142, 144, 456 NE2d 795, 468 NYS2d 854 [1983]). "[I]f on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified, the failure to charge the defense constitutes reversible error" (id. at 145; see Penal Law § 35.15 [2] [a], [c]; People v Maher, 79 NY2d 978, 982, 594 NE2d 915, 584 NYS2d 421 [1992] ; People v Freeman, 159 AD3d 1334, 1335 [4th Dept 2018] In the event the grand jury believed defendant to be the initial aggressor, it would not have been unreasonable for the grand jury to conclude defendant had withdrawn from the encounter and effectively communicated such withdrawal when he backed away into the street and held up his hand to diffuse the situation, but Colon and his group persisted in advancing toward him until Colon swings at defendant, falls and drops his firearm. After having instructed on the initial aggressor rule and viewing the evidence in the light most favorable to the accused, failure to instruct on defendant's withdrawal, results in an incomplete instruction on the defense of justification. As a result, the proceeding is defective, and the indictment must be dismissed. (see CPL §210.35 [5]; Goetz, supra at 115)

6) Defendant asserts the instruction on his duty to retreat was unnecessary.

Next, defendant alleges the grand jury should not have been instructed on his duty to retreat. While there is no duty to retreat before using physical force, one may not use deadly physical force "if he knows that he can with complete safety as to himself and others avoid the necessity of doing so by retreating" (PL §35.15(2)(a). Stated another way, if a defendant, confronted with deadly physical force knows retreat can be made with complete safety and fails to do so, the defense of justification is lost. (In re Y.K., 87 NY2d 430, 432 [1996])

The People contend a reasonable view of the evidence shows defendant could have [*11]retreated safely and therefore the instruction was warranted. Specifically, the People suggest defendant could have moved in a southerly or westerly direction to safety. (AIO ¶ 48) The Court disagrees.

Before the first punch is thrown, defendant is backing up into the street (in a westerly direction) and the Utica men are advancing toward him from the south. Defendant testified, he "didn't want to go into the street any farther into traffic". (GJT 659) The Uber video and City camera footage both show traffic moving on the street. (GJ Ex. #2, 4, 5) Furthermore, defendant was being held by the arm of his jacket by one of the men as he was assaulted on the hood of the car. After hearing Brown shout "Vito, gun" and being assaulted, defendant drew his gun. Even after defendant has his gun drawn, and he is in the street he is rushed at by the driver of the white jeep. As he moved to avoid that assault, he backed onto the sidewalk, with the Utica group all around, surrounding defendant. The evidence does not suggest defendant had the ability to flee with complete safety to himself and Brown.

The Court finds no reasonable view of the evidence suggests defendant was at any point able to retreat safely and it was error to instruct on defendant's duty to retreat. (In re Y.K., 87 NY2d 430, 432 [1996])

7) Defendant asserts the instruction on whether a "single punch" constitutes deadly force was improper.

The instructions the Prosecutor gave were verbatim from the Pattern Criminal Jury Instructions except where the prosecutor added, "a punch from an ordinary person does not generally constitute deadly force" and a "single, albeit crushing punch was a use of ordinary, not deadly physical force" citing People v Bradley, 297 AD2d 640 [2d Dept 2002]; People v Kerley, 154 AD3d 1074 [3d Dept 2017]). (GJT 713-714) Absent a request for clarification, this addendum was unnecessary and likely confusing to the grand jury given the facts of the case.

While the instruction accurately states the holdings in the cases Bradley and Kerley, Colon testified he swung and missed defendant, while Darius Wright and Christian Castillo can be seen punching defendant numerous times. It is unclear, what view of the evidence would dictate the necessity to give an instruction that a single punch was not deadly physical force unless to infer Colon's swing and miss, when viewed in a vacuum, could not have been deadly physical force. As a result of the Courts prior findings, however, it need not decide if this instruction alone prejudiced the defendant to the extent a dismissal of the indictment would be warranted.

8) Defendant claims the justification instructions erroneously identified only Colon as the threat Caselnova was defending against, rather than the entire group of men.

The justification instructions given for Count One (Attempted Murder in the Second Degree) and Count Two (Assault in the First Degree) differ from those given for Count Three (Menacing in the Second Degree). The instructions given for Count One and Two specify that defendant must actually believe that Colon alone was using, or about to use, unlawful deadly/physical force against defendant and defendant's use of deadly physical force was necessary to defend against Colon only. (emphasis added) (GJT 709-719) Defendant argues the instructions should have explained that defendant's use of deadly force was necessary to defend against Colon and the group of men.In other words, the justification instruction for Count One and Count Two should have been the same as that given for Count Three which advised [*12]defendant would be justified if he believed, "Alexander Colon and others" were about to use deadly physical force against him. (GJT 722; 729))

The People disagree arguing, Count One and Count Two are based upon defendant's actions of shooting Colon and "the issue of justification is based upon the conduct of defendant singling Colon out, pointing his gun at Colon, firing his gun at Colon several times, and severely wounding Colon as a result". (AIO ¶128) Therefore, the instruction need not include any reference to the group of men that surrounded defendant.

In determining whether a defendant's acts were justified, the jury must consider whether the "defendant believed deadly physical force was necessary to defend against the imminent use of deadly physical force . . . [and, if so,] whether a reasonable person would have held that belief under the circumstances which existed" (Matter of Y.K., 87 NY2d 430, 434 [1996]). Particularly relevant here, the objective element of the defense—the reasonableness of a defendant's belief under the circumstances—requires a consideration of the totality of the circumstances surrounding the defendant at the time force is used (see People v Wesley, 76 NY2d 555, 559 [1990]; Goetz, supra 113-115).

Here, defendant and Brown were advanced upon and surrounded by a group of men. He was swung at by Colon who fell and dropped his gun. Brown yells, "Vito gun" but does not identify the location of the gun or who possesses it. (GJT 625) Wright and Castillo are repeatedly striking defendant about the head while he is face down on the hood of the Uber car. Defendant can be seen unholstering his gun while on the hood of the car, and as that car reverses, he stumbles, regains his balance, and fans the gun toward the group of men. At his point the white jeep has pulled up and the driver runs at defendant, grabbing him at his shoulder. After he backs onto the sidewalk, defendant sees Colon pointing his firearm at him, they shoot each other.

The evidence cannot be viewed in a vacuum at the exact moment shots are fired without regard for what had transpired in the previous 40 seconds. Based upon these circumstances, it would not be unreasonable for the grand jurors to find defendant reasonably believed that his attackers, not just Colon, were about to use deadly force against him.

The grand jury should not have been limited to consideration of only Colon's actions at the time of the incident but should have been instructed to consider, the physical characteristics of all persons involved and the behavior of third-party aggressors acting in concert with Colon. (see Matter of Y.K., supra at 434; People v Wesley, supra at 559; Goetz, supra at 114; see also CJI2d[NY] Defenses, Justification: Use of Deadly Physical Force in Defense of a Person). Contrary to the People's argument, the fact that a defendant's conduct was directed at a particular attacker does not preclude the jury from considering the conduct of third-party aggressors involved in the altercation in determining whether a defendant reasonably believed that he was being subjected to deadly physical force (see Matter of Y.K., supra at 434; People v Wesley, supra at 560) as cited in People v. Young, 33 AD3d 1120, 1123, 825 N.Y.S.2d 147 (2006)

Even though the prosecutor's justification charge was taken nearly verbatim from the model charge, this alone was insufficient to insure that the jury was informed of all of the relevant principles of law ( People v Andujas, 79 NY2d 113; People v Spradley, 249 AD2d 339; see also People v Watts, 57 NY2d 299; People v Torre, 42 NY2d 1036; People v Simmons, 206 AD2d 550; People v Primus, 178 AD2d 565; People v McGee, 173 AD2d 861; People v Ward, 162 AD2d 566). The test to be used is "whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision" (People v Ladd, 89 NY2d 893, 895 [internal quotation marks omitted]; People v Russell, 266 NY 147; see [*13]also People v Walton, 220 AD2d 548; Cea v Freed, 178 AD2d 397).

Here, the prosecutor's instruction effectively precluded the jury from considering whether the defendant was justified in acting to defend himself against Colon and third persons who had collectively just attacked him on the hood of the car, one of which he had reason to believe possessed a gun. (see People v Morgan, 290 AD2d 566; People v Svitzer, 51 AD2d 935 [1st Dept 1976]) Since the defendant's case rests on his contention that he was justified in responding to the threat of deadly force from Colon and his friends, and the evidence supports, the justification instruction should have reflected such threat. (see People v Wesley, 76 NY2d 555; People v Morgan, supra) as cited in People v. Lauderdale, 295 AD2d 539, 539—40, 746 N.Y.S.2d 163 (2002)

With regard to Count Three, second degree menacing, the record is void of any indication as to who defendant placed (or attempted to place) in reasonable fear of injury by displaying his firearm. Even though the record is silent as to who the victim(s) might be, the grand jury was instructed that defendant would be justified if he believed "Colon and others" were about to use deadly force. (GJT 722, 723, 727, 729, 730) The People's argument suggests the prosecutor gave different justification instructions, dependent upon who the victim of the crime was rather than who defendant reasonably believed it was necessary to defend himself against. Likely this dual instruction confused the jurors further.

While the lack of instruction regarding defendant's withdrawal and justification as a defense to prevent a kidnapping, rape or criminal sexual act demand the dismissal of the indictment, the cumulative improper and confusing instructions related to duty to retreat, reference to "a single punch" and whether the grand jurors were limited to considering if defendant reasonably believed only Colon was about to use deadly /physical force or whether they could consider Colon and his friends collectively as the threat, further supports dismissal.

D) Noninstructional defects in the Grand Jury proceeding CPL §210.35(5)

In order to protect the liberty of all citizens, the legislature requires that an indictment be dismissed where the grand jury proceeding is defective. [CPL§ 210.20(c)]. Moreover, dismissal of the indictment is specifically compelled by statute when the integrity of the grand jury proceeding is impaired and prejudice to the defendant may result. [CPL§ 210.35(5); People v Huston, 88 NY2d 400, 401 (1996)] The statute requires the possibility of prejudice rather than actual prejudice. (Id.; CPL 210.35[6]; People v. Wisdom, 23 NY3d 970; People v. Maddox, 31 AD3d 970).

It cannot be said the People presented the matter in haste to the grand jury, as nearly four months elapsed between the shooting and the presentation. The People went to great lengths to advise the grand jurors the matter was being presented as an investigation, reiterating on several occasions that no one had yet been charged with any crime. The grand jury, as an investigative body, was tasked with determining what, if any, crimes should be charged and who, if anyone, should be so charged. As such, the grand jury as the fact-finding group must have the necessary facts before it to make such a determination on the numerous charges the People asked them to consider.

In addition to providing legal instruction to the grand jury, the District Attorney also determines what evidence to present to that body and what evidence should be excluded. The Prosecutor's discretion during grand jury proceedings, however, is not absolute. As legal advisor [*14]to the grand jury, the Prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus "charged with the duty not only to secure indictments but also to see that justice is done" (People v Lancaster, 69 NY2d at 26, supra; see also, People v Pelchat, 62 NY2d at 105, supra). With this potent authority, moreover, comes responsibility, including "the prosecutor's duty of fair dealing" (People v Pelchat, 62 NY2d at 104, supra). As the Courts have explained, "[t]hese duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the grand jury proceedings, requiring the exercise of completely impartial judgment and discretion" (Di Falco, supra at 487; as cited in People v Huston, 88 NY2d 400, 406 [1996] The prosecutor must maintain the appearance of impartiality and refrain from conduct which could unduly influence the grand jury's assessment of the evidence. The District Attorney's duties as a public officer are quasi-judicial in nature and in the performance of his duties he must not only be disinterested and impartial but must also appear to be so. (See, People v Lofton, 81 Misc 2d 572, 575 [1975] as cited in People v Dzeloski, 161 Misc 2d 867, 868-869 [Sup Ct, Bronx County 1994].)

In this case, Caselnova and Colon, were similarly situated on November 20, 2022 in that both were equally intoxicated (although Colon had a slightly higher blood alcohol concentration), both possessed valid conceal carry pistol permits, both carried their firearms on the streets of Saratoga Springs, both discharged their firearms, and both suffered serious injury from being shot by the other. Even as the matter was presented to the grand jury, Caselnova and Colon were simultaneously potential defendants and victims.

Defendant alleges that despite these similarities, the lack of any pending charges, and the investigative nature of the proceeding, there are several instances where the People's inconsistent and disparate treatment of Caselnova, reveal the People's bias. As a result of this, defendant asserts the grand jury proceeding was impaired and prejudice to the defendant may have resulted, warranting dismissal of the indictment.[CPL §210.35(5)]

Furthermore, the prosecutor's demeanor is critical given the overwhelming reliance the grand jury places on the prosecutor to present evidence against the accused. The Court finds the disparity of the People's inquiry of Caselnova and Colon during the grand jury presentation to be palpable.

1) Improper Testimony

The grand jury minutes reflect both Colon and Caselnova were given the opportunity to explain, in narrative form, what transpired in the early morning hours of November 20, 2022. After the Prosecutor explained to Colon that he could talk about his background, he also advised the information must be relevant. (GJT 666) Colon proceeds to inform the grand jurors that; he grew up in Utica, is a homeowner, has two beautiful kids, a son Alex who is eight, a daughter Alaya is two and a half, his parents still live there, his mom is a paralegal for a law firm, his father is a meat cutter, he has a brother David, a sister Maddie and a brother that is predeceased. Without interruption or admonishment, he continues to explain he has been a barber since 17, he is now a master barber, he is opening his own business and has an apprentice under him. He hopes to open a school one day to inspire people in that career. He is a family man, he works a lot, his fiancée works full-time, and he owns land up north that he is developing. (GJT 666) During his explanation of the events that unfolded, he further explained, "I thought I was going to die. I mean, all I kept thinking about was my kids. I grew up — sorry. I seen my nephew lose my older brother when he was just about my son's age, and I just can't fathom them going [*15]through life without their father. My kids are my world."(GJT 671)

At the conclusion of the evidence the Prosecutor acknowledges the impropriety of this narrative, justifies the decision not to interrupt, and then gives a limiting instruction advising that emotion has no place in the grand jury and the case must be decided on the facts and evidence. (GJT 694) It would have been proper to interrupt and limit this portion of Colon's narrative as it was neither relevant nor competent. [See CPL §190.50(5)(b); People v Smith, 84 NY2d 998 [1994] ][FN4]

2) Inadmissible hearsay and speculation.

In addition to that improper narrative by Colon, inadmissible hearsay and speculation were also permitted on numerous occasions without admonishment, limiting instruction, or as described below, convoluted instructions were given several days after the testimony. Arguably, most inadmissible statements were to the detriment of Caselnova. For example, Colon's friends from Utica speculated as to Colon and Caselnova's intent and state of mind during the incident;

• "He (Caselnova) wanted an altercation." (Victor Vega GJT 98)• "He (Colon) wants to defend himself." (Jonathan Rosado GJT 122)• " ... as Alex (Colon) tries to defend himself to the dude ...". (Jonathan Rosado GJT 123)• "I felt like he (Colon) was just trying to defend himself ...". (Jonathan Rosado GJT 125)

Defendant argues there is a considerable difference in the permitted testimony of witnesses regarding Colon and Caselnova's conduct at the City's bars that morning demonstrating bias in the presentment. Specifically, defendant contrasts the testimony regarding defendant's behavior and removal from the Bourbon Room with Colon's removal from the Soundbar.

Colin Barth, a Bouncer at the Bourbon Room, testified about defendant's argument with Brown at the bar:

Q Did there come a time when you turned your attention to a certain couple that early morning?A Yeah. At a certain point, the bartender had come up to me and said, "Hey, keep an eye on this couple. I feel like he just got mad at her. I don't know what's going on, but his demeanor just completely changed, and he's angry". (GJT 241)A. He (Caselnova) just yelled in her face. So, I walked over, and I told him, "You're not going to do that. You're not going to yell." And he said, "Oh, I'm not going to yell the number eight?" And then I said, "No, you're just not going to yell at a girl in the bar." And then I said, "You guys need to go." She put the tab down. They paid the tab and left.Q What did you do when they left?A I walked out the front door because both of the bartenders, at the current time, were nervous of what was going to happen because he was so angry at her . I walked across, got pizza, and I came back and I told the cops, hey, like, if you guys want to look [*16]around for this guy, I don't know if you're interested or not, but he just got super mad at his girlfriend here, so keep an eye on him.Q Why would you tell the police that?A His demeanor, and they (manager and bartender) were scared that he was going to be abusive and physical with her. So just to make everyone feel better. (GJT 242-243)

The entire testimony is riddled with inadmissible hearsay. Yet, despite the introduction of extensive evidence of defendant's verbal argument with Brown at the Bourbon Room, the Prosecutor asserts this evidence was only offered to prove defendant possessed a firearm in the bar (Count 5)and the manager and bouncer were able to remember defendant because of his conduct. (AIO ¶153-154).Notably, Brown, testified immediately prior to those two witnesses and unequivocally stated, not only was she at that bar with defendant, but further identified him numerous times on various surveillance footage from the bar.

The testimony that bar employees "were nervous something was going to happen" and "were scared he was going to be abusive and physical with her" is inadmissible and highly prejudicial. At the time of the testimony no limiting instruction was given. Instead, more than a week later, the grand jury was instructed as follows:

"You heard some testimony prior to today where there may have been an argument of some sort. We're not offering what was said during the argument as the truth of the matter asserted, but if someone responds because they see an argument, or they approach someone because there's an argument, that's what it's being offered for. It's being offered for the response that someone took when they were told certain information. So, it's not the information itself that's being offered for the truth, it's the reason why they're responding to it. I want you to disregard any sort of hearsay in terms of what the bar owner said to the police officer about the nature of what may have been going on or what may not have been going on. So, do not speculate as to that. (GJT 276-277)

This instruction does nothing to address the fact that the Grand Jurors heard people were scared Caselnova was going to be abusive and hurt Brown thereby implying a propensity for aggression and hostile behavior that morning.

In contrast, Saratoga Springs Police Officer Robertson testified the group, which included Colon, was also requested to be removed from the Soundbar early that morning. The officer's body worn camera (BWC) captured Colon as he was leaving the bar at 2:49:02 a.m. (GJT 275, 296; GJ Ex. #6) [FN5] They were removed from the Soundbar fourteen minutes before the shooting. The mere mention of this incident was immediately followed by an instruction to the grand jury not to speculate about what occurred nor should any negative inference be drawn. (GJT 81, 276, 294-296) The Prosecutor then follows up with leading questions of Saratoga Springs Police Officer Robertson regarding there being no arrests or detainments because of the incident and the Officer answered in the negative.

When a Grand Juror asked if the people Colon was with were removed, the Prosecutor quickly advised Colon to just talk about himself, effectively ending this line of questioning rather than limiting the answer to what the witness observed.(GJT 691) The People further [*17]qualified this evidence with the statement that "the only reason I'm offering this evidence is for identification purposes of Alexander Colon". (GJT 296)

The admission of Colon's narrative and the Bourbon Room employees' testimony without limitation begets the question of whether there was an intended goal of influencing the ultimate decision of the grand jury. (see generally see, People v Caracciola, 78 NY2d 1021, 576 N.Y.S.2d 74, 581 N.E.2d 1329; (People v Huston, 88 NY2d 400, 409-410 [1996]) The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias. ( Id. at 409).

3) Inconsistent statements/Cross-examination

Defendant submits the record is replete with "Prosecutorial Bias" where the People cross-examine Caselnova regarding inconsistent statements but fail to acknowledge inconsistencies in testimony of Colon or his friends. The People assert Colon was asked similar questions, but his testimony contained less inconsistencies and contradictions, therefore, the People did not have a basis to challenge his testimony as often. (AIO ¶178). The Court disagrees based on the record.

During his narrative, Colon testified that after he retrieved his gun from his vehicle there was a disagreement or altercation going on and "was very unaware of it because (he) was at his vehicle". (GJT 669) He returned to the group and before he knew it, he was hit or slapped. Colon testified that when he was struck by Brown, he reacted and tripped on the curb, and he fell. (Id.)

This testimony is inconsistent with the Uber video which shows Colon, was right in the center of the confrontation from the started. Colon is seen being held back by his friend and then swinging at Caselnova. Unlike Caselnova, after Colon's narrative, he is shown a portion of the Uber video and subsequently testifies, " I believe I tried to swing, and I missed and I tripped over a curb". (GJT 681)However, there is no questioning of Colon regarding his testimony that he just happened upon an altercation already in the works, which is inconsistent with the content of the Uber video.

Colon also testified that after he fell, his gun fell out and his glasses fell off. (GJT 669) He continued, "I'd like to note I really can't see maybe five feet in front of me without my glasses So, after I fell and I got up, Johnny Rosado, he picked up my firearm and he handed it back to me. And at this moment, I still don't have my glasses, so I really can't see well." (GJT 681) This testimony is belied by the Uber video footage which clearly shows Colon swinging at Caselnova, falling to the ground, and standing back up with his glasses fully intact. (GJ Ex. 5 @ 3:02:46) There is no inquiry regarding the inconsistency from the People.

Colon states he didn't recall shooting his gun.

Q You said you don't recall firing your Glock?A I do not. I do not ...Q You don't know who shot first?A I know he shot first. I know that for a fact. (GJT 682)

Despite not recalling that he even fired his gun, remarkably Colon knew for a fact that [*18]Caselnova shot first. The prosecutor did not inquire further into this inconsistency, however, a grand juror questioned how he would know if Caselnova shot first if he didn't recall shooting his gun? Colon responded, "because I remember turning around and seeing a flash". (GJT 688) The Grand Juror not only picked up on the inconsistency in Colon's statement about shooting his gun, but also brought to light another relevant inconsistency.

Colon testified that he didn't have his glasses from the time he swung at Caselnova and fell to the ground. He also testified he can't see very well without them. (GJT 669) Even though he can't see very well he was able to see the flash of Caselnova's gun. Despite the contradictions, the record is void of follow up questions challenging the credibility or recollection of Colon.

Another example, one grand juror asked Colon if he was in an altercation at the Soundbar and had to be thrown out of the bar. Colon denied it indicating he was across the street. (GJT 691) Despite the photographic evidence to the contrary,(GJ Ex. #6), and the testimony of Officer Robertson that Colon was part of the group that was removed from the bar, there was no further inquiry or challenge to his credibility.

Contrast this with the cross examination of Caselnova when he testified, he was knocked to the ground while being assaulted which is also contradicted by the Uber video. The video shows Caselnova being knocked onto the hood of the Uber car and then stumbling when it pulls away. He does not land on the ground.

Q You also claim that you fell to the ground, correct?A Yes.Q At one point?A I'm sorry. So, which point are you talking about?Q At any point? You said, at some point, someone punched you, and you ended up falling to the ground, correct?A That's correct. Yes.Q You said you were on the ground?A I believe so, yes.Q And while you were on the ground, you heard, "Run his pockets", twice. That was your claim?A Yes.Q And while you were on the ground, you also heard some other things, and they were doing other things to you while you were on the ground?A I'm sorry. Can you rephrase that? I heard they were doing other things?Q When you were on the ground, what else was being said or done?A One of them said, "Grab her," and then Cali stated — said, "Vito, gun," I believe.Q This was all while you were on the ground, right?A Yes. I'm not sure exactly how long I was on the ground or on the hood of the car, but exactly in that moment.Q And when you say "on the ground," you're talking about the road or sidewalk, correct?A. That's correct. It was the road.(GJT 649-650)

Certainly, "[A] prosecutor who believes a witness is not being forthright may vigorously question or press that witness" however, the vigorous cross examination in this case is unmistakably limited to one witness. (see Huston, supra at 408-409) Furthermore, Colon's recollection of whether he fired his gun, who shot first and his ability to see and observe what transpired that morning is far more relevant than whether Caselnova was on the hood of the car or fell to the ground in the juror's assessment of the charges.

Defendant was also extensively cross-examined regarding his practice of taking a loaded gun with him when going out drinking, the number of drinks he had that night, the appropriateness of mixing guns with alcohol and his training as related to responsible gun ownership. Even though Caselnova's answers on these matters were consistent with the evidence, the antagonism and hostility with which he was examined is unmistakable. Defendant contends, despite being similarly situated, and neither Caselnova nor Colon having been charged, it was evident the Prosecutor intended a particular outcome.

Caselnova was questioned as follows:

Q And you planned to take an Uber because you planned on drinking that night?Q And you knew you were going to drink that night?Q You chose to take your firearm with you?Q You have a SIG Sauer P365X?Q That was fully loaded that night, right?Q You've got a holster?Q In terms of fully loaded, was it 12 rounds or 13?Q So, you had that ready to basically pull out your pistol and fire, if you had to, is that correct?Q ...All you had to do was pull it out of your holster and fire?Q One was in the chamber?Q And you brought with you another magazine, as well?Q And that first magazine held 12 rounds, right?Q And the other magazine that you brought holds 15?Q They both work, and they both function in that SIG Sauer?Q You also brought your Sheriff's badge?Q Your license?Q So, you didn't bring your license?Q But you brought your badge?Q You brought your firearm?Q And you brought 27 rounds of ammunition?Q You brought two magazines. Not just the one —Q — that was fully loaded, but a second one?Q Is it common practice to bring that much — to bring a firearm when you go out drinking?Q That's not the question. The question is, is it common practice? When you said this is common practice, is it common practice to take a firearm when you are planning to go out drinking?

Contrast this with the benign and innocuous examination of Colon regarding his firearm:

Q On November 20, 2022, you had a concealed carry permit?Q And you had one firearm — on that permit, and that was the firearm that you had that night and into the morning, being November 19 into the morning of November 20?Q And that was a — how would you describe the color? Was it a tan color?Q Model 19?Q You had S&B 9-millimeter ammunition?Q Do you recall how many rounds you had in your gun? (GJT 674-675)Q Where was your Glock during the times that you were at Sake Bon all the way through to either the City Tavern or Soundbar?A It was in my vehicle. It was in my glove compartment.Q Dodge RAM, okay. And you said you went over to your truck to start it?Q When you say, manually, describe for the Grand Jury?Q And at that point is when you retrieved —A Yes. That's when I retrieved my firearm out of my glove compartment.Q Now, how did you leave your car, at that point in time?Q Was it unlocked at that point?(GJT 676-679)

The disparity in the pattern of questioning continues through the testimony regarding consumption of alcohol:

Colon:Q You said you went to a number of places on November 19 into November 20 of 2022, right?Q First was Sake Bon?Q Did you have anything to drink there, in terms of alcohol?Q And then you went to Double Vision at some point?Q But it's a strip club?Q You went to that place, right?Q And did you have any alcohol there?Q But you did have something?Q That you recall. After that, you said you went to Saratoga Springs to City Tavern, correct?Q You had some alcohol there, as well?Q Do you recall going to the Soundbar at all? (GJT 675-676)

Caselnova:Q So, your group, being the four of you — yourself, Cali, Kyle and Ali — went to Seneca Restaurant in downtown Saratoga Springs here?Q And you went there and you drank there, alcohol, right?Q You had at least a couple bourbons?A Yeah. At least that, yes.Q Pardon?A I believe so, yes.Q Okay.A I don't recall, at this point, what I had consumed, but I did give a statement to the police.Q From Seneca, you went to — was it Caroline Street Pub next?A Yes. Caroline Street Pub was the next destination.Q There, you started drinking some beer?A That's correct.Q You had approximately — you had at least three Budweisers there, correct?A I can't recall, at this time. If you give me —Q What do you recall in terms of how much?A I know I consumed beer there. I don't remember, at this time, how many it was. Although, again, if it's on my statement, I could recollect.Q But you acknowledge that you drank while you were there?A That's correct.Q You then go over to Tap & Barrel?A Yes.Q And you have more to drink there?A I did, yes.Q When I say, "more to drink," I mean more alcoholic drinks?A That's correct.Q Or alcohol drinks. Do you know how many alcohol drinks you had at Tap & Barrel?A I don't recall.Q Eventually, you go to the Bourbon Room, correct?A Yes.Q You had another drink there?A Yes. Q Casamigos?A I don't recall. That sounds — yes, that sounds like something I would have.(GJT 636-641)

Unlike the questioning of Caselnova, "you had a couple of bourbons, you had three beers, you had a Casamigos", there is little to no inquiry of Colon as to the number or types of alcoholic drinks he consumed that morning. Even when Caselnova indicated he didn't recall what he drank or how many he had but clearly stated the information was in his statement given to police, the Prosecutor did not give him the opportunity to refresh his recollection to insure he answered accurately.

The inquiry leaves the misimpression that Caselnova was more intoxicated than Colon when the evidence shows Colon's BAC was .136%, slightly higher than Caselnova's BAC at .132%. (GJ Ex. # 45 and 46)

Questions regarding the training received during the pistol permitting process, as it relates to the combination of guns and alcohol, was also limited only to Caselnova and not Colon:

Q Let me just ask you a question about training. You received training in order to get your pistol permit, correct?Q All right. And that training covered that you don't mix consuming alcohol with firearms, correct? (GJT 655)No similar inquiry was made to Colon, despite testimony Colon was also mixing consuming alcohol with firearms.

4) Injuries

Both Colon and Caselnova were charged with assault related crimes which required the Prosecutor to present evidence to the grand jury of physical injury and/or serious physical injury for both Colon and Caselnova. Caselnova's narrative gave an explanation of wounds he suffered indicating he suffered two gunshot wounds from Colon and three from police officer. Colons bullets struck him in the front left leg and exited out his calf and the other in the right hip exiting out his backside. (GJT 628-629) The Prosecutor's follow up questions for Caselnova consisted of :

Q You already described your wounds for us?A I did.Q Now, in terms of any bullets, no bullets were recovered from your body, correct? (GJT 651-652)

Colon's narrative described getting shot in the shoulder which "split his humerus like a 'Y' ", being shot in the knee and arm, and having a bullet fragment lodged in his chest. He described having six or seven entrance and exit wounds altogether. (GJT 671-672) Unlike the Prosecutor's questioning of Caselnova, the follow-up inquiry regarding Colon's injuries is consistent with a Prosecutor who is seeking to prove the element of physical or serious physical injury:

Q You told us about some of the wounds that you sustained.Q Is it fair to say that you lost a lot of blood?Q And you said that you were —Q I'm not asking you about the amount. But you were conscious to a certain point, correct?Q And you were able to observe some of the wounds to yourself?Q Did you eventually have surgeries on — any of those wounds?Q And how do those injuries, including your shoulder, feel today?(GJT 682-684)

The Court is cognizant of the fact that, in addition to the gunshot wounds Caselnova suffered at the hands of Colon, he was also shot numerous times by the police. However, there was no attempt to distinguish or question defendant about the injuries caused by Colon versus those caused by the police or whether he suffered injuries from the assault by Wright and Castillo. That evidence was essential to prove an element of several of the charges the grand jury was asked to consider.

This disparity is exhibited further during the admission of Colon's and Caselnova's certified medical records. (GJ Ex #7 and 8; GJ Ex. # 9, 10, 11 respectively) After Colon's records were entered into evidence pursuant to CPLR §4518(c), a portion was read into the record by the [*19]Prosecutor:

"There's an assessment. Right knee: Bleeding, controlled. Bleeding, uncontrolled. Gunshot wound. Right knee findings: Through and through of knee and lower thigh. Right forearm: Bleeding, controlled. Bleeding, uncontrolled. Gunshot wound. Right forearm findings: Through and through of upper forearm. Left upper arm findings: TQ in place. Right upper leg findings: TQ in place. Left forearm: Bleeding, controlled. Bleeding, uncontrolled. Gunshot wound. Left forearm findings: Through and through a firearm entrance at wrist and exit at upper forearm. Right upper arm findings: TQ in place. Mental status: Unresponsive, slowness and poor responsiveness. (GJT 339; GJ Ex #7 and # 8):

That portion of Caselnova's certified medical records which were read into the record by the Prosecutor consisted of :

Patient was found to have 10 GSWs. Locations are as follows: L anterior chest, R axilla, R hip interior, R hip posterior, L5 posterior, L5 medial, L calf anterior, L calf posterior, R foot medial, R foot lateral (GJT 341; GJ Ex. #9, #10, #11),

A grand juror then inquired whether Caselnova's ten gunshot wounds were described in the records as having entrance and/or exit wounds. (GJT 341)An answer in the affirmative, would arguably credit or discredit defendant's testimony and provide evidence of injuries suffered at Colon's hands.

The Prosecutor indicated he had a witness who could provide an answer to that question and shortly thereafter, Chris Allen, an Investigator with Saratoga Springs Police Department, testified that he had reviewed all the medical records in the case. The prosecutor proceeded to elicit testimony from him about the content of the medical records. Specifically, if he knew how many of Caselnova's wounds were entrance and/or exit wounds. Investigator Allen did not know. (GJT 357-358) As a police investigator and not a medical professional, it is highly improper to ask this witness to decipher and interpret hundreds of pages of medical records to determine whether there is any reference to entrance and exit wounds. Furthermore, the witness acknowledged he did not know, leaving the Grand Juror's question unanswered.

The relevant issue becomes whether the prosecutor withheld any information from the grand jury which would have materially influenced its investigation (see, People v Holmes, 118 AD2d 869; People v Thompson, 108 AD2d 942). People v Suarez, 122 AD2d 861, 862 [2d Dept 1986]) As noted above, Caselnova testified that he was shot by Colon and suffered entrance and exit wounds on his hip and leg/calf. Rather than call a medical professional who could provide an answer, the question was ignored. Presumably, the Grand Juror was left to decipher hundreds of pages of complex medical records for an answer to a material and relevant question.

Notably, after the charge of third-degree assault against Castillo, the Prosecutor instructed the grand jurors regarding what constitutes an "attempt" of that crime. A Grand Juror questioned why the assault was being charged as an attempt, "I thought from what we saw it looked like he was successful". In response to which the Prosecutor testified they did not have before them sufficient evidence of any injury to charge an assault:

"With regard to a completed crime, there would have to be proof that there was physical injury in the form of impairment of physical condition or substantial pain. You did hear from a witness, Mr. Caselnova, in terms of his injuries. You didn't hear specifically—-he wasn't able to articulate which—-he didn't articulate which punch or which action may [*20]have caused him substantial pain". (GJT 782-783)

Remarkably, even though the grand jury was asked to consider several assault charges where Caselnova was the victim, the record is void of any inquiry by the People into any pain or injury he may have suffered. Instead, the Prosecutor seemingly shifts the burden of proving such injury or pain onto Caselnova. The People's Affirmation in Opposition states, "[Caselnova] never once testified to any pain or injury associated with the slaps or punches he sustained". (AIO ¶50) Contrasted with Colon who was asked by the prosecution specifically, did you lose a lot of blood, were you conscious, did you have surgery on those injuries, how do those injuries feel today?

5) Witness preparation

Inexplicably, despite the matter being presented to the grand jury as an investigation, several of the lay witnesses viewed video evidence prior to or during their testimony rather than testifying as to what they recalled. Manuel Vasquez viewed the Marketplace video(GJ Ex. #4) prior to his testimony. (GJT 146).[FN6] More importantly, Victor Vega, Jonathan Rosado and Cali Brown were permitted to view the Uber video prior to their testimony and Colon testified as to its content while he viewed it in grand jury. (GJT 91, 128, 225) Admittedly, the Prosecutor withheld these videos of the incident from Caselnova. (AIO page 30, footnote 12)

Within hours of the shooting on November 20, 2022, Saratoga Springs City Officials released City camera footage and Officer Body Camera video of the shooting to the public. It was available to view across many media outlets including social media. Despite the City camera footage and the Officers Body Worn Camera video having been released to the public and accessible to all the lay witnesses, query of Caselnova on whether he viewed this footage was extensive. Yet not one question on the subject was asked of Colon or any other lay witness.

Q Did you ever speak to her (Brown) about the incident that happened on November 20, 2022?Q Many times, in fact?Q You still care for her, is that right?Q Quite a bit, right?Q And you've seen video with her about the incident?Q And you watched those videos together, correct?Q Those were the videos that the police commissioner in Saratoga Springs released to the public?Q Two videos that were released and you were able to watch them?Q Did you watch them from a TV or from a laptop?Q One of those videos was a body camera of one of the police officers, correct?Q And the other one was the City camera —Q— video?Q From a pole of some sort?Q How many times would you say that you watched those videos?Q How many times did you watch them with Cali?Q Give us —A An approximation.Q Yes.(GJT 634-636)

Noticeably, the purpose of eliciting this testimony is to suggest Caselnova viewed the released video numerous times and therefore tailored his testimony to fit the content of those videos. This is further evidenced by the People's AIO (page 30, footnote 12) where the People note defendant did not have access to any other video prior to testifying and suggests there is a "stark contrast" in his testimony as it relates to the released and unreleased footage.

There was no questioning of Colon on this issue despite his acknowledgement that he saw David Delgado pull up in the white jeep on the "street camera" video. (GJT 670). There is also no question of Colon and his friends whether they discussed the shooting prior to testifying or whether they watched the released footage together.

This extensive questioning of Caselnova and nonexistent examination of Colon, coupled with the fact that Caselnova was the only lay witness involved in the altercation not shown the Uber video prior to or during his testimony, further exposes the intentional disparate treatment of Caselnova and bias in the presentation.

6) Uncharged crimes.

a) Gang Assault — PL 120.06 against Colon, et. al.

Defendant argues another instance of bias in the presentation is the failure to charge Colon and the Utica group with gang assault. The uncontroverted evidence shows Caselnova was attacked by Alex Colon, Darius Wright, and Cristian Castillo while many of their other friends advanced toward Caselnova, including the driver of the white jeep who also swung at Caselnova.

In New York, a person can be charged with Gang Assault in the Second Degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person. (PL § 120.06). Case law indicates participants must be physically present, willing, and able to render immediate aid to one another, and must, by their presence, pose additional risk of violence. People v Fatal, 187 Misc 2d 334, 723 N.Y.S.2d 609, 2001 NY Misc. LEXIS 41 (NY Sup. Ct. 2001).[FN7]

Considering the evidence presented, it would not be unreasonable for the grand jury to have found reasonable cause to believe Colon, aided by Wright, Castillo, and other members of the group, intended to cause physical injury to Caselnova, with the ultimate result being serious physical injury due to the gunshot wounds from Colon. (see People v Hill, 52 AD3d 380, 860 N.Y.S.2d 518, 2008 NY App. Div. LEXIS 5469 (NY App. Div. 1st Dep't 2008); People v Bradley, 297 AD2d 640 [2d Dept 2002]).

[*21]b) Failure to Safely Store Rifles, Shotguns and Firearms, in the First Degree -PL §265.01 against Colon.

In defense of the allegation of limited questioning of Colon, the prosecutor states Colon had fewer inconsistencies and contradictions in his testimony and Colon did not engage in any criminal acts leading up to the shooting incident which can be proven. (AIO ¶177-1788). This is inaccurate.

Effective September 1, 2022, in response to the ruling in N.Y.Y State Rifle & Pistol Assn. v Bruen, — US —, 142 S Ct 2111 [2022], the legislature overhauled the State's gun laws enacting a slate of new restrictions on those applying to carry a gun, revising training requirements, banning areas where a firearm may be carried, and imposing more stringent safe storage requirements for firearms.

The legislation lists over 25 public and private places where people are not permitted to carry their guns including establishments which serve alcohol. Defendant is charged under this new law, PL §265.01-e, because he is alleged to have brought his firearm into the Bourbon Room bar. (Count 5) The People need only prove he possessed a firearm in the bar and that it was operable. Whether the firearm is loaded is irrelevant to the charge. [PL §265.01-e]

This new law also prohibits a person from leaving a loaded gun unattended in a vehicle. A gun may be left unattended in a vehicle only if it is unloaded and stored it in an appropriate safe storage depository out of sight. Glove compartments, locked or not, are not considered appropriate safe storage depositories.[PL §265.45(2)]

Colon admitted he retrieved his loaded gun from the glove compartment of his truck. Therefore, it is factually inaccurate to assert Colon did not engage in any criminal activity prior to the shooting. The Prosecutor simply chose not charge Colon with this crime.

Perplexing to the Court is the decision not to present these relevant and serious charges which are directly related to the possession of a firearm, the assault, and the shooting, and yet second-degree harassment is charged for an entirely unrelated incident. An unrelated incident, without an identified complaining witness.

7) Mischaracterization of facts.

Also concerning is the mischaracterization of facts and evidence in the People's Affirmation in Opposition (AIO). For example:

a) Paragraph 6 of the AIO states, "defendant decided that evening to leave his wallet, all forms of payment and all forms of identification behind". In fact, Colon testified, "I inadvertently left my identification in my car that night". (GJT 638)b) AIO paragraph 12 states, "Upon Defendant and his girlfriend's arrival at said bar (Bourbon Room) ...Defendant ordered yet another bourbon drink." In fact, defendant's testified that he had a couple of bourbons at Seneca Restaurant (GJT 640-641) and a Casamigos at the Bourbon Room. (GJT 641)c) AIO paragraph 12 also states "When asked to provide a form of identification at the entry way, Defendant briskly flashed his badge at the bouncer and proceeded to enter the bar unchallenged."This is an inaccurate recitation of the testimony. Olivia Ventra, the Bourbon Room manager testified the bouncer was not at the door, so she asked defendant for identification, and defendant explained he did not have his wallet, but he was a cop and he handed her his badge. She took his badge, held it, and described it as [*22]being a five-point star in a brown leather case. (GJT 232-233)d) Paragraph 18 of the AIO states, " Colon and his friends were waiting nearby for the rest of their friends to arrive so that they could return to their nearby hotel" citing GJT 141-143 and 678-680 (emphasis added). In fact, Manuel Vasquez testified they were going back to Victor's house in Schenectady or Rotterdam and Colon testified they were deciding if they were going to get a hotel or go back to Victor's. (GJT 143; 668; 679) There is no testimony the group was returning to a hotel.e) AIO paragraph 21 states, "Colon stated that he had gone straight from work in Utica New York to meet his friends in Saratoga Springs. He therefore still had the firearm in his possession when he arrived downtown." Colon never testified he went straight from Utica to Saratoga Springs, instead he said he picked Darius Wright and Johnny Rosado up from Utica then drove to Rotterdam. They all got ready there. He brought his clothes then they went to Sake Bon for dinner then to another bar before going to Saratoga Springs. (GJT 664) This is also relevant to the fact he knew he was going out for a night of drinking and brought his loaded handgun. Unlike Caselnova, there was no cross examination on this issue.f) AIO paragraph 21 asserts "Colon stated under oath that he kept the gun locked in his truck that evening to avoid the inherent dangers of bringing a loaded firearm downtown." In fact, Colon testified, "I didn't want to leave my firearm inside my car with my vehicle running, even though it was in my glove compartment I just felt safer having it on my person and not leaving it in my vehicle. My vehicle is running" (GJT 668-667)g) AIO paragraph 22 states, "defendant and Brown were still visibly engaged in their intoxicated argument". However, none of the People's cites make any reference to the couple's intoxication, only that they were arguing. h) AIO paragraph 33 states, "Caselnova received two quick punches from Castillo and three slaps from Wright. Wright disengages and returns to the sidewalk. Castillo throws two additional punches then also disengages by stepping back onto the sidewalk." The Uber video, however, clearly depicts Castillo punching Caselnova five times and Wright striking him three times. (GJ Ex. #5, 3:02:44-3:02:46) Wright and Castillo disengage when Caselnova unholsters his gun.i) AIO paragraph 19, in the recitation of facts, the People assert Colon removed his pistol from the vehicle's locked glove compartment. No testimony was given his glove compartment was locked. (GJT 107, 09, 668, 676 678-679, 686-689)
III. CONCLUSION

The exceptional remedy of dismissal is available in "rare cases" of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant. In general, this demanding test is met only where the prosecutor engages in an overall pattern of bias and misconduct that is "pervasive" and typically willful, whereas isolated instances of misconduct, including the erroneous handling of evidentiary matters, do not merit invalidation of the indictment. The statutory test, which does not turn on mere flaw, error or skewing is very precise and very high. (People v Thompson, 22 NY3d 687, 691 [2014])

In addition to the Court's findings regarding the defect in instructions, the Court further finds the cumulative impact of the Prosecutor's improper tactics during the presentation of [*23]defendant's case to the grand jury sufficiently impaired the integrity of the proceedings so as to potentially prejudice the ultimate decision reached by the Grand Jury and warrants dismissal of the indictment. (People v Huston, 88 NY2d 400, 401 [1996]; People v. Sutherland, 104 AD3d 1064, 1066 [3d Dept. 2013])

Any one of the issues mentioned above, if isolated and not pervasive, may not be sufficient to require dismissal. However, Colon's improper narrative, several witnesses' improper speculation that Colon was simply defending himself, improper testimony regarding defendant's aggressive behavior and subsequent removal from the bar without a limiting instruction, the lack of any effort to solicit evidence of defendant's injuries, the lack of inquiry as to whether Caselnova experienced pain, the disparate questioning of Caselnova and Colon when both were potential suspects and/or victims, especially as it relates to inconsistencies in their testimony, sets forth a demonstrated pattern of unfairness. Perhaps the most telling and troubling is the intentional withholding of the Uber video evidence from Caselnova, despite allowing Colon to watch it as he testified and the decision not to charge Colon with crimes the evidence supported. Without these irregularities, it would not have been unreasonable for the Grand Jury to have decided not to indict the defendant.

The cumulative effect of these errors in this grand jury proceeding rendered it so flawed as to be fundamentally defective and cannot be said to be fair in any sense of the word. People v Richard, 148 Misc 2d 573, 577 [Albany County Ct 1990] Defendant's motion to dismiss is hereby granted without prejudice and the People are granted leave to re-present the case to a new grand jury. Pursuant to CPL §160.50, the record, including but not limited to transcripts, defendant's photographs and fingerprints, shall be sealed, as the matter has been disposed of in favor of the accused. The transcript of the grand jury proceeding shall not be used in subsequent matters, for any purpose, without application to and order from the Court. This decision is limited to the presentation as it relates to Caselnova only and does not affect or disturb any actions taken, or decisions made by the grand jury involving the any other party [FN8] , as no party with standing has made such request.

The foregoing constitutes the Decision and Order of the Court.

ENTER
Dated: September 20, 2023
Ballston Spa, New York

______________________________
HON. JAMES A. MURPHY, III
ACTING SUPREME COURT JUSTICE
SARATOGA COUNTY COURT JUDGE Footnotes

Footnote 1:The grand juror acted properly in bringing his concern of potential impropriety of the Assistant District Attorney to the Court as a legal advisor to the Grand Jury. CPL §190.25(6)

Footnote 2:It is worth noting on the second and third day of the Court's inquiry it became apparent some of the grand jurors had learned of the letter through media outlets.

Footnote 3:Notwithstanding the charge of second-degree harassment related to the allegation Caselnova kicked an unknown, unidentified man in the groin.

Footnote 4:Caselnova limited his narrative to the events of November19 and 20, 2022.

Footnote 5:A still photo of Colon taken from the BWC was introduced as Grand Jury Exhibit 6 to identify Colon.

Footnote 6:Originally the prosecutor identified GJ Ex. No. 4 as 5 then corrected the record on page 148 of the transcript.

Footnote 7:Of course, this charge is directly dependent upon the prosecutor inquiring about the injuries sustained by defendant.

Footnote 8:The Grand jury found no misconduct returning a "no true bill" on the part of the conduct of the Saratoga Springs Police Department and its officers; and filed a charge of attempted assault 3rd, a class B misdemeanor, against Colon, Castillo, and Wright in Saratoga Springs City Court. These findings remain undisturbed.