People v. Cruz-Rivera

• Decision Date: 31 July 2019
• Docket Number: KA 17–01334,626
• Citation: 105 N.Y.S.3d 249,174 A.D.3d 1512
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose CRUZ–RIVERA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1512
105 N.Y.S.3d 249

The PEOPLE of the State of New York, Respondent,
v.
Jose CRUZ–RIVERA, Defendant–Appellant.

626
KA 17–01334

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

Entered: July 31, 2019

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

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

105 N.Y.S.3d 251

MEMORANDUM AND ORDER

174 A.D.3d 1512

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25[3] ), attempted kidnapping in the second degree (§§ 110.00, 135.20), gang assault in the first degree (§ 120.07), and criminal possession of a weapon in the third degree (§ 265.02[1] ). Contrary to defendant's contention, County Court properly denied his motion to dismiss the indictment

174 A.D.3d 1513

on the ground that two witnesses had committed perjury at the grand jury proceeding. A court may dismiss an indictment upon motion by a defendant if the grand jury proceeding was defective (see CPL 210.20[1][c] ). A grand jury proceeding is defective when, inter alia, "[t]he proceeding otherwise fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" ( CPL 210.35[5] ; see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). "Dismissal of indictments under CPL 210.35(5) should ... be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury" ( Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ). "The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment" ( id. ). Here, inasmuch as the prosecutor did not knowingly offer perjured testimony and there was sufficient evidence before the grand jury to support the charges without considering the perjured testimony, dismissal of the indictment was not required (see People v. Lumnah, 81 A.D.3d 1175, 1177, 917 N.Y.S.2d 412 [3d Dept. 2011], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ; People v. Bean, 66 A.D.3d 1386, 1386, 885 N.Y.S.2d 804 [4th Dept. 2009], lv denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010] ; People v. Mariani, 203 A.D.2d 717, 719, 610 N.Y.S.2d 967 [3d Dept. 1994], lv denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334 [1994] ).

Defendant next contends that the court erred in allowing defendant's probation officer to testify regarding the electronic data from defendant's ankle monitor because such testimony was hearsay. We conclude that defendant's contention is not preserved for our review. Although defense counsel initially sought to preclude such testimony, the court reserved decision after argument and indicated that it would "handle [the issue] as it unfolds." When the probation officer testified the following day, defense counsel requested a limiting instruction but made no further objection to the testimony, in all likelihood because she intended to, and in fact did, cross-examine the witness regarding other data obtained from the ankle monitor. In any event, we conclude that any error was harmless inasmuch as the evidence was overwhelming and there was no significant probability that the error affected the verdict (see People v. Brown, 57 A.D.3d 1461, 1462, 871 N.Y.S.2d 540 [4th Dept. 2008], lv denied 12 N.Y.3d 814, 881 N.Y.S.2d 22, 908 N.E.2d 930 [2009], ...