People v. Calkins

• Citation: 85 A.D.3d 1676,925 N.Y.S.2d 773,2011 N.Y. Slip Op. 05314
• Parties: The PEOPLE of the State of New York, Respondent,v.Carl J. CALKINS, Defendant–Appellant.
• Decision Date: 17 June 2011
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1676

925 N.Y.S.2d 773

2011 N.Y. Slip Op. 05314

The PEOPLE of the State of New York, Respondent,

v.Carl J. CALKINS, Defendant–Appellant.

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

June 17, 2011.

Muldoon & Getz, Rochester (Gary Muldoon Of Counsel), for Defendant–Appellant.Lawrence Friedman, District Attorney, Batavia (William G. Zickl Of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of criminal mischief in the third degree (Penal Law § 145.05 [2] ), defendant contends that reversal is required based on errors committed by the prosecutor when instructing the grand jury with respect to the defense of justification. We agree. Although the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person ( see § 35.15) with respect to the charge of assault in the second degree (§ 120.05), the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree ( see § 35.00). We note that the grand jury voted not to indict defendant for assault but did indict him for criminal mischief. Although it is true that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” ( People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140), we conclude that defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person ( see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises ( see § 35.20[3] ). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges ( see People v. Butterfield, 267 A.D.2d 870, 873, 702 N.Y.S.2d 140, lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 139, 735 N.E.2d 419; People v. Ali, 19 Misc.3d 672, 674, 858 N.Y.S.2d 502; People v. Andino, 183 Misc.2d 290, 292–293, 702 N.Y.S.2d 778).

Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Nevertheless, defendant's “conviction after trial does not cure...