People v. Diaz

• Decision Date: 16 March 1995
• Parties: The PEOPLE of the State of New York, Appellant, v. Edjardo DIAZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 113

624 N.Y.S.2d 113

209 A.D.2d 1

The PEOPLE of the State of New York, Appellant, v. Edjardo DIAZ, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

March 16, 1995.

Carol A. Remer-Smith, of counsel, New York City (Sandra L. Sneed, on the brief, Robert M. Morgenthau, District Attorney of New York County, attorney), for appellant.

Laura Rossi-Ortiz, of counsel, New York City (E. Joshua Rosenkranz and Joseph M. Nursey, attorneys), for defendant-respondent.

Before WALLACH, J.P., and ROSS, RUBIN, NARDELLI and TOM, JJ.

TOM, Justice.

The People herein appeal from the dismissal of an indictment charging defendant Edjardo Diaz with single counts of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1] and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1].

Testimony educed before a Grand Jury from the undercover officer involved in the illicit narcotics transaction revealed that on September 9, 1992, at approximately 12:05 AM, defendant Diaz, a Mr. David Rodriguez and a third, unidentified male were approached by the officer, who was assigned to the Manhattan North Tactical Narcotics Team, at the corner of East 119th Street and 2nd Avenue in upper Manhattan. The undercover officer asked the men where he could buy "trays", a street term apparently referring to $3 crack vials. Defendant asked how many he wanted and the undercover replied three. Defendant then allegedly expressed his reluctance to sell crack to the officer because he did not know him, at which time the officer stated he understood, turned and began to walk away.

At that juncture, Rodriguez gestured for the officer to return and again asked how many he needed, to which the undercover repeated three. The officer was then directed to enter a nearby building to purchase the drugs, at which suggestion the undercover balked and said he had been robbed before. At that, defendant got up and proceeded into the building by himself. In the interim, the officer told Rodriguez that he wanted to go to a bodega to buy cigarettes, but Rodriguez insisted he stay, allegedly stating that defendant "is going to get it for me." Upon being recalled, the officer testified to essentially the same thing, that Rodriguez stated that defendant "is getting it for you."

Defendant subsequently emerged from the building accompanied by a Ms. Norma Rodriguez and was approached by the undercover officer. Defendant informed the officer that Ms. Rodriguez "has it" and the officer then received three vials of crack cocaine from Ms. Rodriguez in exchange for cash. The undercover officer left the vicinity, radioed his backup team and, a short time later, defendant, David Rodriguez and Norma Rodriguez were arrested.

Pursuant to New York County Indictment Number 10201/92, filed October 15, 1992, defendant and the two other individuals were each charged with single counts of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. On or about December 7, 1992, defendant, in his omnibus motion, moved, inter alia, to dismiss the indictment or, in the alternative, to reduce the charges pursuant to CPL 210.20 on the ground that the evidence presented to the Grand Jury was insufficient to support the charges.

On or about March 15, 1993, after reviewing the Grand Jury minutes, the trial court dismissed the indictment, with leave to re-present to another Grand Jury, on the ground that the integrity of the proceeding had been impaired within the meaning of CPL 210.35(5). The People appeal and we now reverse.

The trial court found that the introduction of David Rodriguez' statement "he is getting it for you" constituted inadmissible hearsay which prejudiced the defendant because of the closeness of the case with regard to defendant's involvement. The court also concluded that the foregoing prejudice was exacerbated by the prosecutor's failure to issue a curative instruction directing the Grand Jurors to disregard the hearsay statement and by the prosecutor's factual misstatement indicating that it was specifically defendant who directed the undercover officer into the building.

It is the function of the Grand Jury to protect citizens from unfounded prosecutions as well as to investigate whether sufficient evidence exists to accuse a citizen of a crime (People v. Ford, 62 N.Y.2d 275, 282, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Pelchat, 62 N.Y.2d 97, 104-105, 476 N.Y.S.2d 79, 464 N.E.2d 447; People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656), whereas the duty to determine whether the People have proven the guilt of the accused, beyond a reasonable doubt, resides with the petit jury (People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140). While general criminal trial court evidentiary rules apply to a Grand Jury proceeding (CPL 190.30[1]; People v. Mitchell, 82 N.Y.2d 509, 513, 605 N.Y.S.2d 655, 626 N.E.2d 630), such a proceeding is not a "mini trial" (People v. Lancaster, 69 N.Y.2d 20, 30, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697, citing People v. Brewster, 63 N.Y.2d 419, 422, 482 N.Y.S.2d 724, 472 N.E.2d 686). Therefore, the validity of an indictment "does not turn on mere flaw, error or skewing" of the proceeding (People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974; People v. Winningham, 209 A.D.2d 461, 618 N.Y.S.2d 450) and the receipt of evidence which might not be admissible at trial does not necessarily impair the integrity of a Grand Jury proceeding (People v. Taylor, 181 A.D.2d 408, 409, 580 N.Y.S.2d 337, lv. denied 79 N.Y.2d 1055, 584 N.Y.S.2d 1022, 596 N.E.2d 420).

Turning to the facts of the case at bar, it is clear to us that what the trial court found to be "inadmissible hearsay" was not inadmissible but was, in fact, allowable under the exception carved out for statements made by co-conspirators. The elementary governing principles of this exception were recently restated by the Court of Appeals in People v. Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950, as follows:

A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule (People v. Rastelli, 37 N.Y.2d 240, 244, [371 N.Y.S.2d 911, 333 N.E.2d 182,] cert. denied 423 U.S. 995 [96 S.Ct. 421, 46 L.Ed.2d 369]. However, this evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established (People v. Salko, 47 N.Y.2d 230, 237, [417 N.Y.S.2d 894, 391 N.E.2d 976,] rearg. denied 47 N.Y.2d 1010 [420 N.Y.S.2d 223, 394 N.E.2d 292]; People v. Rastelli, supra). 'Of course, the determination whether a prima facie case of conspiracy has been established must be made without recourse to the declarations sought to be introduced' (People v. Salko, supra, [47 N.Y.2d] at 238 [417 N.Y.S.2d 894, 391 N.E.2d 976]; see also, Richardson, Evidence § 244 [Prince 10th ed].

(See also, People v. Alwadish, 67 N.Y.2d 973, 974, 502 N.Y.S.2d 989, 494 N.E.2d 94; People v. Sanders, 56 N.Y.2d 51, 62, 451 N.Y.S.2d 30, 436 N.E.2d 480, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247; People v. Hernandez, 155 A.D.2d 342, 343-344, 547 N.Y.S.2d 635, lv. denied 75 N.Y.2d 813, 552 N.Y.S.2d 563, 551 N.E.2d 1241; People v. Ardito, 86 A.D.2d 144, 147, 449 N.Y.S.2d 202, affd. 58 N.Y.2d 842, 460 N.Y.S.2d 22, 446 N.E.2d 778.)

The facts herein, distinct from the statements made by David Rodriguez, set forth the following series of events: defendant converses with the undercover officer about a possible narcotics transaction but declines to make the sale because he does not know the undercover officer and states that he therefore "didn't feel right"; David Rodriguez then beckons for the officer's return and, either Rodriguez or defendant or both, as the officer's testimony, based on the record, is unclear on this point, direct the undercover officer into a certain building; once the officer declines, defendant immediately proceeds into the building; defendant then exits the building a short time later with Norma Rodriguez; and, upon...