People v. Connolly, 2008 NY Slip Op 50108(U) (N.Y. County Ct. 1/10/2008)
| Decision Date | 10 January 2008 |
| Docket Number | 07-066. |
| Citation | 2008 NY Slip Op 50108 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. LEO T. CONNOLLY, Defendant. |
| Court | New York County Court |
Hon. R. Michael Tantillo, Special Seneca County District Attorney, Counsel for the People.
Napier & Napier, Esqs., (Robert A. Napier, Esq., of Counsel), Counsel for the Defendant.
W. PATRICK FALVEY, J.
A Special Grand Jury was empaneled on January 3, 2007 in order to investigate allegations of criminal conduct and/or other misconduct, non-feasance, or neglect in public office in Seneca County. The Grand Jury met on various dates beginning January 3, 2007 and ending August 22, 2007, resulting in various Indictments and grand jury reports.
Defendant at bar, Leo T. Connolly, Seneca County Sheriff at the time of the Indictment, was charged by the Special Grand Jury with one Count of Offering a False Instrument for Filing in the First Degree, a class E Felony, in violation of §175.35 of the Penal Law; one Count of Falsifying Business Records in the Second Degree, a class A misdemeanor, in violation of §175.05(1); three Counts of Official Misconduct, a class A misdemeanor, in violation of §195.00(1); one Count of Rewarding Official Misconduct in the Second Degree, a class E Felony, in violation of §200.20 of the Penal Law; and one Count of Perjury in the First Degree, a class D Felony, in violation of §210.15 of the Penal Law.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated November 19, 2007, accompanying affidavit and other supporting documents.
Upon argument of his Omnibus Motions on November 29, 2007, certain branches and elements therein were decided and determined upon said argument and incorporated into an order.
The Court also reserved decision, at the conclusion of oral arguments on the following issues:
1. The Grand Jury proceedings failed to conform to the requirements of CPL Article 190 pursuant to CPL sections 210.20(1)(c) and 210.35;
2. Inspection of the Grand Jury minutes and, upon such inspection, for a dismissal of the indictment on the grounds that it was defective and/or the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser offenses as well as other stated grounds. CPL sections 210.20(1)(a) and (b) and 210.30; or in the alternative reduction pursuant to CPL section 210.20(1-a); and
3. Dismissal of Counts six and seven of the Indictment.
Based on the defendant's motion papers, the District Attorney's responding affirmation datedDecember 10, 2007; the Grand Jury Minutes; vote/payroll/attendance records; grand jury booklets; the Court's instruction to the Grand Jury, the arguments had; all subsequent submissions by counsel and the proceedings herein the Court decides as follows:
THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS
The defendant requests that the Court disclose the minutes of the Grand Jury proceedings. However, maintaining the secrecy or confidentiality of grand jury minutes is a matter of paramount public interest. Ruggiero v. Fahey, 103 AD2d 65. The secrecy is jealously guarded because confidentiality of its proceedings is necessary to ensure its continued effectiveness. Matter of Grand Jury, New York County, 125 Misc 2d 918.
However, in the discretion of the Trial Court, disclosure may be directed, when after balancing of the public interest in disclosure against one favoring secrecy, the former outweighs the latter. Matter of District Attorney of Suffolk County, 58 NY2d 436; Application of Fojp Service Corp., 119 Misc 2d 287.
In order for the Court to release the grand jury minutes to defense counsel, counsel must "first establish a compelling and particularized need for them". People v. Shakiya Robinson and Bruce Jamsen, 98 NY2d 755. "Only then must the court assess in its discretion, whether disclosure is appropriate under the circumstances". People v. Fetcher, 91 NY2d 765. It is a two-step process that conforms to the due process requirements of the Constitution. People v. Ramos, 85 NY2d 678.
Based on a review of the Grand Jury Proceedings the Court determines that it does not need counsel's assistance by turning over said minutes in order to properly rule on this issue. The Court finds no compelling and particularized need for disclosure, persuasive enough to overcome the strong presumption in favor of secrecy. Fojp, supra . Furthermore, the defendant was not able to meet his burden to establish a compelling need for the minutes.
The defendant also moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35.
An Indictment regular on its face must be presumed to have been properly returned by the Grand Jury. People v. Smith, 128 NYS2d 90, aff'd 283 AD 775. Furthermore, Grand Jury proceedings carry a presumption of regularity and to overcome that presumption there must be a showing by the defendant of a particularized need or gross and prejudicial irregularity in the proceedings or some other similarly compelling reason. People v. Lewis, 98 AD2d 853.
The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).
An Indictment imparts absolute verity until properly impeached, and until there is satisfactory proof to the contrary, it is presumptively regular, not only in its basis upon sufficient legal evidence, but also in its foundation upon lawful proceedings by the grand jury, including due concurrence in indictment by the requisite number of grand jurors. People vs. Brinkman, 309 NY 974, 975.
The presumption is in favor of the validity of an indictment, which was presented by a grand jury, 22 of whose members were present when the case was presented. People v. Blair, 17 Misc 2d 265. And the Grand Jury is privileged to return an indictment so long as at least 12 of the Grand Jurors who voted to indict heard all the essential and critical evidence. People v. Brinkman, supra; People v. Infante, 124 AD2d 86.
The Court finds that the presentation of the charges at bar took place on various days between the period of January 24, 2007 through August 22, 2007. The Court notes that 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1)] on each particular charge and more than twelve grand jurors voted to indict this defendant on each of the counts charged. [CPL sections 210.35(2) and (3)].
The defendant also alleges that the Grand Jury proceeding failed to otherwise conform to the requirements of CPL Article 190 to such a degree that the defendant was prejudiced and that the Grand Jury's integrity was impaired. CPL section 210.35(5).
In conjunction with this the Court has carefully reviewed the instructions given the Grand Jury by the Court and Special District Attorney as well as CPL Article 190 as it pertains to the present indictment.
In order to help ensure that the Grand Jury properly performs its function, the Court and the Special District Attorney are designated to act as its legal advisors [see CPL section 190.25 (6)]. One of the duties of the legal advisor is that it "must instruct the grand jury concerning the law with respect to its duties or any matter before it" in instances "[w]here necessary or appropriate" [CPL section 190.25 (6)]. No statutory provision expands upon the meaning of the phrase, "necessary or appropriate", or addresses the issue of the specificity required when instructions are given. People v. Malave, 124 Misc 2d 210, 212. People v. Calbud, Inc., 49 NY2d 389, 394 as quoted in Malave, supra at pp. 212-213, states the Court of Appeals noted in part as follows:
".... Malave, supra p. 213.
As legal advisor, the District Attorney is entrusted with the duty of instructing the Grand Jury concerning the law or any matter properly before it and normally it is sufficient for the prosecutor to read the appropriate Penal Law sections to the Grand Jury. People v. Kennedy, 127 Misc 2d 712.
When considering the issue of sufficiency, one must understand that the function of the Grand Jury is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject he or she to criminal prosecution. This function is opposed to that of a petit jury, which bears the ultimate responsibility of determining the guilt or...
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