People v. Alexander M. W.

• Decision Date: 01 November 2018
• Docket Number: 110080
• Citation: 166 A.D.3d 1080,87 N.Y.S.3d 690
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander M. WEST, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1080

87 N.Y.S.3d 690

The PEOPLE of the State of New York, Respondent,

v.Alexander M. WEST, Appellant.

110080

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 14, 2018

Decided and Entered: November 1, 2018

Cheryl Coleman, Albany, for appellant.

Jason M. Carusone, District Attorney, Lake George, for respondent.

Before: Egan Jr., J.P., Lynch, Devine, Clark and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered June 5, 2017, upon a verdict convicting defendant of the crimes of manslaughter in the second degree, assault in the second degree, criminally negligent homicide, leaving the scene of an accident without reporting (two counts), boating while ability impaired by alcohol, reckless operation of a vessel and criminal possession of a controlled substance in the seventh degree.

During the early evening of July 25, 2016, Robert Knarr was piloting his antique wooden boat home on a post-dinner cruise with his family on Lake George when it was struck and overrun by another boat, which then left the scene. As a result of this collision, Knarr's eight-year-old granddaughter, Charlotte McCue, was killed and his daughter, Courtney McCue, Charlotte McCue's mother, was seriously injured. Police thereafter learned that defendant was a possible operator of the other boat and questioned him the following morning.

In October 2016, defendant was charged in a 12–count indictment with manslaughter in the second degree, assault in the second degree, vehicular manslaughter in the second degree, vehicular assault in the first degree, vehicular assault in the second degree, criminally negligent homicide, leaving the scene of an accident without reporting (two counts), boating while ability impaired by alcohol, boating while ability impaired by drugs, reckless operation of vessel and criminal possession of a controlled substance in the seventh degree, all related to this incident. Defendant thereafter moved to, among other things, dismiss the indictment or, alternatively, for inspection of the grand jury minutes on the ground that there was legally insufficient evidence to support the indictment and that it was otherwise defective, which motion County Court denied. Following a jury trial, defendant was convicted of manslaughter in the second degree, assault in the second degree, criminally negligent homicide, leaving the scene of an accident without reporting (two counts), boating while ability impaired by alcohol, reckless operation of a vessel and criminal possession of a controlled substance in the seventh degree, and acquitted of vehicular manslaughter in the second degree, vehicular assault in the first degree, vehicular assault in the second degree and boating while ability impaired by drugs. Defendant was thereafter sentenced to an aggregate term of 5 to 15 years in prison, with the sentences to run concurrently. Defendant now appeals.

Defendant initially contends that the integrity of the grand jury proceeding was undermined, and the indictment rendered defective, when the People presented inadmissible blood test evidence to the grand jury. We disagree. A motion to dismiss an indictment may be granted upon a determination that the integrity of the grand jury proceedings has been so impaired that prejudice to the defendant may result (see CPL 210.35 [5 ]; People v. Huston, 88 N.Y.2d 400, 406–408, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ; People v. Pelchat, 62 N.Y.2d 97, 106, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984] ; People v. Tatro, 53 A.D.3d 781, 783, 862 N.Y.S.2d 154 [2008], lv denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ). Dismissal of an indictment, however, "is a drastic, exceptional remedy and ‘should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ " ( People v. Moffitt, 20 A.D.3d 687, 688, 798 N.Y.S.2d 556 [2005], lv denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005], quoting People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; accord People v. Kidwell, 88 A.D.3d 1060, 1061, 931 N.Y.S.2d 148 [2011] ). Notably, "[e]ven where inadmissible evidence is presented to a grand jury, such will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment" ( People v. Sutherland, 104 A.D.3d 1064, 1067, 962 N.Y.S.2d 463 [2013] [internal quotation marks and citations omitted]; see People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ).

Here, on the morning of July 26, 2016, defendant initially consented to a police request to have his blood drawn for chemical analysis, but, following receipt of a letter from a local attorney indicating that he was representing defendant, the Warren County Sheriff's Department delayed the planned blood draw and applied to County Court for a search warrant. After an investigator for the Sheriff's Department received verbal authorization from County Court, a sample of defendant's blood was drawn at an area hospital for analysis; however, no written search warrant was actually signed by County Court until the following day, July 27, 2016. After defendant was indicted, and in response to defendant's omnibus motion, seeking, among other things, suppression of the chemical analysis of defendant's blood, the People conceded that defendant's blood draw was not performed pursuant to a valid warrant and consented to suppression of his blood test results. There is no evidence in the record that the People made an intentional decision to present inadmissible evidence to the grand jury or otherwise acted in bad faith (see People v. Boddie, 126 A.D.3d 1129, 1130, 6 N.Y.S.3d 165 [2015], lv denied 26 N.Y.3d 1085, 23 N.Y.S.3d 642, 44 N.E.3d 940 [2015] ). Moreover, having reviewed the transcript of the grand jury proceedings, we find that there was other legally sufficient evidence presented to the grand jury to support the charges such that dismissal of the indictment was not required under the circumstances (see People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; People v. Gordon, 88 N.Y.2d 92, 98, 643 N.Y.S.2d 498, 666 N.E.2d 203 [1996] ; People v. Mesko, 150 A.D.3d 1412, 1415, 55 N.Y.S.3d 748 [2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Sutherland, 104 A.D.3d at 1067, 962 N.Y.S.2d 463 ; People v. Kidwell, 88 A.D.3d at 1061, 931 N.Y.S.2d 148 ).

County Court did not err when it granted the People's for-cause challenge with respect to sworn juror No. 107. As relevant here, "[a] challenge for cause of a prospective juror which is not made before he [or she] is sworn as a trial juror shall be deemed to have been waived, except that such a challenge based upon a ground not known to the challenging party at that time may be made at any time before a witness is sworn at the trial" ( CPL 270.15 [4 ]; People v. Wlasiuk, 90 A.D.3d 1405, 1409 n. 2, 935 N.Y.S.2d 709 [2011] ; People v. Jackson, 182 A.D.2d 919, 919, 582 N.Y.S.2d 546 [1992], lv denied 80 N.Y.2d 832, 587 N.Y.S.2d 917, 600 N.E.2d 644 [1992] ). To that end, a party may challenge a prospective juror for cause if such juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20 [1 ] [b]; see People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ). Notably, "[i]f there is any doubt about a prospective juror's impartiality, the trial court should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another" ( People v. Arnold, 96 N.Y.2d 358, 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] [internal quotation marks and citation omitted]; see People v. Harris, 19 N.Y.3d at 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ; People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008 [2011] ; People v. Powell, 153 A.D.3d 1034, 1035–1036, 61 N.Y.S.3d 362 [2017] ; People v. Briskin, 125 A.D.3d 1113, 1117, 3 N.Y.S.3d 200 [2015], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ).

Here, juror No. 107 was the first juror selected during jury selection and he was duly sworn in by County Court. Unbeknownst to any of the parties at that time, however, the Sheriff's Department had received a criminal complaint against juror No. 107 that very same day, accusing him of rape. The following morning, prior to continuation of jury selection, the People challenged him for cause based upon this development. Defendant objected, and, after hearing from both sides, County Court granted the People's challenge and discharged juror No. 107, without questioning the juror himself. We find no abuse of discretion by County Court in discharging this juror as the prospect of him sitting as a juror in this case while simultaneously being investigated by the Sheriff's Department and potentially prosecuted by the Warren County District Attorney's office – the same two entities that had, respectively, investigated and were now prosecuting defendant – was clearly likely to compromise the ability of juror No. 107 to render an impartial verdict (see CPL 270.15 [4 ]; 270.20 [1] [b]; People v. Scott, 16 N.Y.3d 589, 595, 925 N.Y.S.2d 384, 949 N.E.2d 475 [2011] ; People v. Gaines, 258 A.D.2d 921, 921, 687 N.Y.S.2d 920 [1999], lv denied 93 N.Y.2d 899, 689 N.Y.S.2d 711, 711 N.E.2d 987 [1999] ). Moreover, to the extent that defendant contends that County Court further erred by failing to make an inquiry of the juror himself prior to his discharge, he failed to preserve said contention by requesting that such an inquiry be conducted (see CPL 470.05 [2 ]; People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 [2005] ; People v. Reichel, 110 A.D.3d 1356, 1358 n. 5, 975 N.Y.S.2d 470 [2013], lv denied 22 N.Y.3d 1090, 981...