People v. Davis
| Decision Date | 23 May 1983 |
| Citation | 119 Misc.2d 1013,465 N.Y.S.2d 404 |
| Parties | The PEOPLE of the State of New York v. Van DAVIS, Defendant. |
| Court | New York Supreme Court |
Martin Goldman, Forest Hills, for the motion.
John J. Santucci, Dist. Atty., opposed.
Defendant, herein, has been indicted and charged with Assault in the Second Degree and Menacing.
The People allege that on August 7, 1982 at approximately 6:45 P.M. at the American Airlines Terminal (Building # 57) at JFK International Airport, Queens County, the defendant struck the complainant in the face causing injury to his eye. At the time of the incident, the defendant, a native of the island of Jamaica, was on duty as a Security Guard, directing cars that approached the terminal to pick up arriving passengers. The complainant was a driver for a limousine service. A dispute arose over whether the complainant could park his limousine in front of the terminal, or whether he was required to park in a designated area for limousines away from the terminal entrance. The complainant exited his vehicle whereupon, he claimed, the defendant struck him and threatened him with a knife [not recovered]. Thereafter, complainant entered the terminal and spoke with the defendant's superiors. The Port Authority Police were called to the scene and, at the complainant's behest, arrested the defendant and charged him with Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree and Menacing. As a result of the defendant asserting his innocence and insisting that the complainant struck him first, the police also arrested the complainant but only charged him with a violation for harassment. Both received desk appearance tickets.
On February 15, 1983 and February 16, 1983, the District Attorney presented the matter to the Grand Jury.
The defendant, having executed a Waiver of Immunity, was the first witness to appear and testify before the Grand Jury.
The defendant now seeks dismissal of the instant indictment pursuant to CPL §§ 210.20 subd. 1(c) []; 210.35 subd. 4 [] and 210.40 [in furtherance of justice]. The underlying premise for defendant's motion is the assertion that the District Attorney went beyond the limits of proper cross-examination; making prejudicial remarks and asking questions aimed at discrediting the defendant's testimony based upon his race and place of birth.
The People refute the defendant's arguments on the grounds that the relief sought cannot be obtained since defendant was accorded an opportunity to appear and testify before the Grand Jury and exercised his right and further that there are no compelling factors warranting dismissal in the furtherance of justice. The People, however, consent to treating this motion as a motion to inspect and dismiss pursuant to CPL § 210.30 [insufficiency of evidence].
The Court is now confronted with the heretofore unresolved issue as to whether CPL §§ 210.20 sub. 1(c) and 210.35 sub. 4 can be invoked where a defendant has, in fact, appeared and testified, [upon execution of a Waiver of Immunity], before the Grand Jury.
In reaching a determination the Court must, in the case at bar, consider the impact of the prosecutor's actions before the Grand Jury to ascertain whether they were of such a prejudicial nature as to have effectively negated the defendant's right to appear and testify before said Grand Jury.
Criminal Procedure Law § 190.50 subd. 5(a) states in pertinent part:
"When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf...."
Paragraph b of subdivision 5 provides that
Since 1979 only two cases have been reported in the "Notes of Decisions" following the Supplementary Practice Commentaries to CPL § 190.50 (See McKinney's Supplementary Pamphlet, Book 11A, CPL §§ 170-329, 1981-1982, p. 121) in which indictments were dismissed where it was found that defendants were denied their statutory right to testify even though they appeared before the Grand Jury.
In People v. Dunbar, 100 Misc.2d 389, 390-391, 419 N.Y.S.2d 432 (1979) the Court dismissed the indictment on the grounds that Id. at 433.
The Court held that the People had a statutory right to cross-examine the defendant/witness (See CPL § 190.50 subd. 5(b), supra ) but only after said witness completed his statement to the jurors.
Similarly, in People v. Green, 80 A.D.2d 650, 436 N.Y.S.2d 420 (1981) the indictment was dismissed and the Grand Jury proceedings found defective where the Assistant District Attorney interrupted the witness twice after she began her statement and thereafter proceeded to question and cross-examine her. The witness was then excused and not given permission to conclude her testimony. The Appellate Division, Third Department, reversed the lower court's denial of the motion to dismiss on the ground that the Grand Jury proceedings were defective under CPL §§ 190.50 subd. 5; 210.20 subd. 1(c) and 210.35 subd. 4.
What makes this matter unique and distinguishable from Dunbar and Green, supra, is that here the defendant was given the opportunity to complete his entire, although brief, statement before the prosecutor commenced his cross-examination. However, upon inspection of the Grand Jury minutes, it became evident to the Court that the Assistant District Attorney was predisposed to proving the defendant's guilt before the Grand Jury rather than just eliciting facts for the jurors' consideration. Under such circumstances the Court cannot, in good conscience, allow this indictment to stand.
Although the District Attorney has sole authority in determining who is or is not to be prosecuted, People v. Siragusa, 81 Misc.2d 368, 366 N.Y.S.2d 336 (1975), it is well settled that the primary duty of a District Attorney is to see that justice is done. People v. Lofton, 81 Misc.2d 572, 366 N.Y.S.2d 769 (1975).
Lofton, supra at 575, 366 N.Y.S.2d at 775-76.
It behooves this Court to extract portions of the more than 100 pages of Grand Jury minutes which clearly demonstrate that the District Attorney was not, by any stretch of the imagination, acting in a proper and impartial manner.
"Q Is there a lot of pressure on your job?
A Not so much.
Q But you just described to us sir, that if you don't do your part, a properly demanding job, and if you don't inquire of drivers, and if one car blocks everything; I think it would be true to say that you would not take it with so much equanimity?
A I don't understand.
Q I'll ask it again. During the rush hour, are you very busy?
A Yes.
Q And there are times when people are not as nice as they would be if it were not rush hour?
A But they don't come after us sir.
Q August 7th, going back to last year, was a hot day; do you remember?
A August is the summer.
Q And it being the summer, how would you describe it? Would you say it's hotter than other months?
A No. I can take the hot sir, heat don't bother me Q Were you forced to take the heat that day sir?
A The heat don't bother me sir.
Q The heat never bothers you?
A It doesn't bother me. I was born in tropical climate. The heat won't bother me.
* * *
* * *
Q What are you assigned to do in that area?
A My job is coming in flights. I ask--I'd greet you real politely. I'd ask you what flight your meeting. We have a main monitor inside. We take down the time of the flight. We--every fifteen minutes one of us would go inside and if a flight is delayed--
Q Not to interrupt you, but as far as the politeness, are you as polite to limo drivers as you would be--
A I'm polite to everybody sir.
Q You are extremely polite as well as to limo drivers who get hysterical?
A Yes.
* * *
* * *
Q Please, sometimes I don't listen quite as well as I should. Let's take it step by step.--
* * *
* * *
Q Whatever. We're trying not to confuse you. I'm the one that sometimes gets overly confused.--
* * *
* * *
Q Mr. Davis, we are not here to be overly tough on anyone who has volunteered to come in. Mr. Davis, isn't it true that you picked up something in your hands and you were the one that hit this individual?
A No, sir.
Q Would you be surprised if someone were to say that that individual was taken to the hospital?
A Excuse me sir?
Q Would you be surprised if someone told you that this individual was taken to the hospital?
A I have heard of that sir.
Q Mr. Davis, isn't it true that you did strike the individual?
A I never struck first. All I did was throw my hands up in the air.
Q Sir, you never struck first?
A No, sir.
Q But you did however make a statement, I never struck first. Does that leave a little bit of doubt because if you didn't strike first, did you strike second?
A As I explained to you before sir, when he struck me I was so astonished, I threw my hands up in the air to get him off of me. This guy's...
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