People v. Blauvelt

• Decision Date: 22 December 2017
• Docket Number: 1160,KA 15–00794
• Citation: 156 A.D.3d 1333,68 N.Y.S.3d 784
• Parties: The PEOPLE of the State of New York, Appellant, v. Scott E. BLAUVELT, Kyle C. Norcross, Defendants–Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1333
68 N.Y.S.3d 784

The PEOPLE of the State of New York, Appellant,
v.
Scott E. BLAUVELT, Kyle C. Norcross, Defendants–Respondents, et al., Defendant.

1160
KA 15–00794

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

Entered: December 22, 2017

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR APPELLANT.

ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–RESPONDENT SCOTT E. BLAUVELT.

GREEN & BRENNECK, SYRACUSE (SCOTT A. BRENNECK OF COUNSEL), FOR DEFENDANT–RESPONDENT KYLE C. NORCROSS.

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

MEMORANDUM AND ORDER

Memorandum:

In this prosecution arising from an altercation that allegedly resulted in serious physical injury to one person (hereafter, victim) and damage to another person's vehicle, the People obtained an indictment charging defendants Scott E. Blauvelt and Kyle C. Norcross with gang assault in the second degree ( Penal Law § 120.06 ), charging Blauvelt with criminal mischief in the third degree (§ 145.05[2] ), and charging Norcross and a third defendant with criminal mischief in the fourth degree (§ 145.00[3] ). County Court granted defendants' motions to dismiss the indictment, concluding in relevant part that there was legally insufficient evidence of serious physical injury to support the gang assault counts and that the conduct of the prosecutor impaired the integrity of the grand jury proceeding. The People appeal with respect to Blauvelt and Norcross. At the outset, we decline to grant Blauvelt's request that we exercise our discretion to dismiss the People's appeal based on their delay in perfecting it (see CPL 470.60[1] ; cf. People v. Calaff, 103 A.D.3d 500, 500, 959 N.Y.S.2d 427 [1st Dept. 2013], aff'd 23 N.Y.3d 89, 101, 989 N.Y.S.2d 418, 12 N.E.3d 416 [2014], cert. denied ––– U.S. ––––, 135 S.Ct. 273, 135 S.Ct. 273 [2014] ). We also note that, on this appeal by the People, we have no authority to consider the alternative ground for affirmance raised by Blauvelt in his brief, which does not involve an error or defect that "may have adversely affected the appellant" ( CPL 470.15[1] ; see People v. Karp, 76 N.Y.2d 1006, 1008–1009, 565 N.Y.S.2d 751, 566 N.E.2d 1156 [1990] ; People v. Woodruff, 4 A.D.3d 770, 773, 771 N.Y.S.2d 620 [4th Dept. 2004] ).

We agree with the People that the evidence before the grand jury was legally

68 N.Y.S.3d 786

sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to "readily apparent external physical injuries of which he obviously [had] personal knowledge" ( People v. Brandon, 102 A.D.2d 832, 833, 476 N.Y.S.2d 370 [2d Dept. 1984] ), and his testimony concerning the leg injury he sustained in the altercation, i.e., that the injury required surgery, that he took narcotic pain medication for two months, and that he was still using a crutch and experiencing pain and range of motion limitations at the time of the grand jury proceeding more than seven months after the incident, was sufficient to establish a protracted impairment of health and a protracted impairment of the function of his leg (see Penal Law § 10.00[10] ; People v. Heyliger, 126 A.D.3d 1117, 1119, 5 N.Y.S.3d 566 [3d Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Pittman, 253 A.D.2d 694, 694, 679 N.Y.S.2d 101 [1st Dept. 1998], lv denied 92 N.Y.2d 1052, 685 N.Y.S.2d 430, 708 N.E.2d 187 [1999] ; People v. Garcia, 202 A.D.2d 189, 190, 608 N.Y.S.2d 425 [1st Dept. 1994], lv denied 83 N.Y.2d 1003, 616 N.Y.S.2d 485, 640 N.E.2d 153 [1994] ; see generally People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585 [4th Dept. 2009], lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ).

We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired (see People v. Thompson, 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rear'g denied 23 NY3d 948, 987...