People v. Ballowe

• Decision Date: 07 June 2019
• Docket Number: 524,KA 17-00748
• Citation: 173 A.D.3d 1666,103 N.Y.S.3d 207
• Parties: The PEOPLE of the State of New York, Respondent, v. Gabriele BALLOWE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1666

103 N.Y.S.3d 207

The PEOPLE of the State of New York, Respondent,

v.Gabriele BALLOWE, Defendant-Appellant.

KA 17-00748

524

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

Entered: June 7, 2019

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting her, upon her plea of guilty, of leaving the scene of an incident resulting in serious injury without reporting ( Vehicle and Traffic Law § 600[2][a], [c][i] ), defendant contends that Supreme Court (Wolfgang, J.) erred in granting the People leave to re-present the case to a second grand jury. We reject that contention. The relevant accident occurred in December 2013 and, in May 2014, a grand jury returned a "no bill." In May 2016, the People sought to re-present the charges to a new grand jury on the ground that a witness, who had offered false testimony before the first grand jury, had recently agreed to cooperate with the People and testify truthfully. CPL 190.75(3) provides that where, as here, charges have been dismissed by the grand jury, they "may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge[s] to the same or another grand jury." "Leave may be granted only once, and the [People are] required to justify resubmission" ( People v. Montanez, 90 N.Y.2d 690, 693, 665 N.Y.S.2d 62, 687 N.E.2d 1345 [1997] ; see People v. Washington, 125 A.D.2d 967, 968–969, 510 N.Y.S.2d 402 [4th Dept. 1986], lv denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106 [1987] ). "[T]here should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission; that the [g]rand [j]ury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the [g]rand [j]ury otherwise acted in an irregular manner" ( People v. Dykes, 86 A.D.2d 191, 195, 449 N.Y.S.2d 284 [2d Dept. 1982] ; see People v. Tomaino, 248 A.D.2d 944, 945–946, 670 N.Y.S.2d 950 [4th Dept. 1998] ). Here, the court properly granted the People's application to re-present the charges to a second grand jury based upon "the availability of a witness who would provide new evidence," i.e., truthful testimony ( People v. Morris, 248 A.D.2d 169, 170, 670 N.Y.S.2d 828 [1st Dept. 1998], affd 93 N.Y.2d 908, 690 N.Y.S.2d 510, 712 N.E.2d 676 [1999] ).

We agree with defendant, however, that the court (Burns, J.) failed to rule on that part of her omnibus motion seeking to have the court compare the evidence from the two grand jury proceedings "to determine whether the prosecutor ha[d], in fact, presented the promised new evidence" to the second grand jury ( People v. Martin, 71 A.D.2d 928, 929, 419 N.Y.S.2d 724 [2d Dept. 1979] ; see Dykes, 86 A.D.2d at 195, 449 N.Y.S.2d 284 ). Inasmuch as "[w]e have no power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court" ( People v. Coles, 105 A.D.3d 1360, 1363, 966 N.Y.S.2d 288 [4th Dept. 2013] [internal quotation marks omitted]; see CPL 470.15[1] ; People v. Concepcion, 17 N.Y.3d 192, 195, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ; People v. Rainey, 110 A.D.3d 1464, 1466, 972 N.Y.S.2d 782 [4th Dept. 2013] ), "we cannot deem the court's failure to rule on [that part of] the ... motion as a denial thereof" ( People v. Hymes, 160 A.D.3d 1386, 1387, 76 N.Y.S.3d 679 [4th Dept. 2018] [internal quotation marks omitted]; see People v. White, 134 A.D.3d 1414, 1415, 22 N.Y.S.3d 723 [4th Dept. 2015] ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a determination whether the People, in fact, presented new evidence to the second grand jury and, if not, whether dismissal of the indictment is warranted on that ground (see Martin, 71 A.D.2d at 929, 419 N.Y.S.2d 724 ; see also CPL 210.40[1] ; see generally Hymes, 160 A.D.3d at 1387–1388, 76 N.Y.S.3d 679 ; People v. Moore, 147 A.D.3d 1548, 1549, 48 N.Y.S.3d 567 [4th Dept. 2017] ; White, 134 A.D.3d at 1415, 22 N.Y.S.3d 723 ).

Additionally, defendant contends that she was denied due process based on preindictment delay. Upon our review of the relevant factors (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ), we reject that contention. "It is well established that ‘a determination made in good faith to defer commencement of the prosecution for further investigation[,] or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense’ " ( People v. Gang, 145 A.D.3d 1566, 1566, 44 N.Y.S.3d 666 [4th Dept. 2016], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017], quoting People v. Singer, 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978] ; see People v. Wiggins, 31 N.Y.3d 1, 13, 72 N.Y.S.3d 1, 95 N.E.3d 303 [2018] ; see also People v. Decker, 13 N.Y.3d 12, 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ). We conclude that the People's decision to re-present the charges to a second grand jury nearly two years after the first grand jury dismissed the charges " ‘was not an abuse of the significant amount of discretion that the People must of...