People v. Doty

• Decision Date: 07 September 2011
• Parties: The PEOPLE of the State of New York, v. Gary R. DOTY, Defendant.
• Court: New York County Court

929 N.Y.S.2d 464

The PEOPLE of the State of New York,

v.Gary R. DOTY, Defendant.

County Court, Essex County, New York.

Sept. 7, 2011.

Andrew J. Wylie, Esq., Clinton County District Attorney, as special district attorney pursuant to County Law § 701 (Timothy G. Blatchley, Esq., of counsel), Plattsburgh.

Brennan & White, LLP (Joseph R. Brennan, Esq., of counsel), Queensbury, for defendant.

RICHARD B. MEYER, J.

Pretrial motion ( CPL § 255.10 ) by the defendant for relief in the nature of dismissal or reduction of an indictment, granting discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief¹ .

The defendant is charged by a five-count indictment filed on December 29, 2010 with having committed the crimes of grand larceny in the second degree ( Penal Law § 155.40[1] ), grand larceny in the third degree ( Penal Law § 155.35 ) (two counts), grand larceny in the fourth degree ( Penal Law § 155.30[1] ), and scheme to defraud in the first degree ( Penal Law § 190.65 [1][b] ). The charges arise out of a series of partially unrelated transactions during the period of October 2007 to May 2009 alleged to have occurred in Essex County. It is claimed that the defendant, a building contractor² , stole property from three suppliers by charging materials to his long-established credit accounts with each merchant and failing to pay those accounts in full, and that he also stole cash from a couple who had hired him to build a house in the town of Willsboro. For the reasons that follow, the defendant's motion must be granted and the indictment dismissed because the integrity of the grand jury proceedings was impaired by the presentation of inadmissible hearsay evidence derived from illegally obtained records of the defendant.

A.

The court has reviewed the grand jury minutes to determine not only whether sufficient evidence was presented to support each and every count in the indictment but also to evaluate whether the grand jury proceedings were defective ( CPL § 210.35[5] ).

"[A]n indictment is presumed to be based on legal and sufficient evidence" (People v. Bergerson, 17 N.Y.2d 398, 402, 271 N.Y.S.2d 236, 238, 218 N.E.2d 288, 290; see also People v. Howell, 3 N.Y.2d 672, 675, 171 N.Y.S.2d 801, 803, 148 N.E.2d 867, 868). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 N.Y.2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124; People v. Lott, 104 A.D.2d 710, 480 N.Y.S.2d 597; People v. Delameter, 96 A.D.2d 629, 464 N.Y.S.2d 878), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774, 776; People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 83, 464 N.E.2d 447, 451; People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affirmed 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt" (People v. Mayo, supra at 1004, 374 N.Y.S.2d 609, 337 N.E.2d 124).

"In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.' To further illustrate the point the Commission Staff noted that evidence may be legally sufficient' to support a charge although it does not prove guilt beyond a reasonable doubt,' and for that matter, although it does not even provide reasonable cause' to believe that the defendant committed the crime charged.' (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10 )" (People v. Sabella, 35 N.Y.2d 158, 167, 359 N.Y.S.2d 100, 108, 316 N.E.2d 569, 574–575).

" CPL 210.20(1)(c) provides that a charge must be dismissed when the proceedings as a whole are defective within the meaning of CPL 210.35. Pursuant to CPL 210.35(5), a Grand Jury proceeding is defective when [t]he proceeding otherwise fails to conform to the requirements of [CPL 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result' " (People v. Corrigan, 80 N.Y.2d 326, 329, 590 N.Y.S.2d 174, 176, 604 N.E.2d 723, 725). "The exceptional remedy of dismissal is ... warranted only where a defect in the indictment created a possibility of prejudice" ( People v. Huston, supra at 409, 646 N.Y.S.2d at 74, 668 N.E.2d at 1368), a standard which "is very precise and very high" (People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974), and actual prejudice need not be shown ( CPL 210.35[5] ; see People v. Sayavong, 83 N.Y.2d 702, 709, 613 N.Y.S.2d 343, 347, 635 N.E.2d 1213, 1217). However, "not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective", and "isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice" ( Id., at 409, 646 N.Y.S.2d at 75, 668 N.E.2d at 1368).

B.

Central to the determination of the issues presented here are the issuance in 2009 by the then district attorney³ of a subpoena duces tecum to the bank where the defendant maintained his business accounts, the testimony of a state police investigator who reviewed those bank records and prepared a "spreadsheet" of some of the contents of those records, and the introduction into evidence before that grand jury of the spreadsheet itself as well as testimony if the investigator regarding information in the bank records. The defendant challenges the use of such evidence before the grand jury, asserting that it was inadmissible hearsay, particularly because the People did not place into evidence the actual bank records for consideration by the grand jury, and also that those records were illegally obtained. Moreover, the prosecution prevented the written contract for the construction of the residence from being placed in evidence on the assertion that the best evidence of the contents of that agreement was the testimony of one of the homeowners.

Because a grand jury is empowered to indict a person for a crime only upon "legally sufficient evidence" ( CPL § 190.65[1] ), which explicitly requires "competent evidence" ( CPL § 70.10[1] ), criminal trial rules of evidence are applicable to grand jury proceedings (see CPL art. 60; People v. Mitchell, 82 N.Y.2d 509, 605 N.Y.S.2d 655, 626 N.E.2d 630) with limited exceptions (see CPL § 190.30 ). These exceptions include: the admission of certified official reports and records of publicly-employed experts, such as a "physicist, chemist, coroner or medical examiner, firearms identification expert, examiner of questioned documents, fingerprint technician" and others, including reports electronically transmitted; sworn statements by individuals reciting their ownership or possessory rights to real or personal property; sworn statements by dealers as to the value of specified property; sex offender registration documents; videotaped statements of child witnesses; and certified business records relating to a person's subscription to and use of communication services (i.e., telephone, internet) and his/her financial transactions and accounts. ( CPL § 190.30, subds. [2]-[8] ).

"New York State indictments must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay (Richardson, Evidence § 4, at 4 [Prince 10th ed.]; see also, People v. Oakley, 28 N.Y.2d 309, 314, 321 N.Y.S.2d 596, 270 N.E.2d 318)" (People v. Swamp, supra, at 730, 622 N.Y.S.2d at 474, 646 N.E.2d at 776). "Hearsay evidence—generally, an oral or written⁴ "statement made out of court ... offered for the truth of the fact asserted in the statement' (People v. Romero, 78 N.Y.2d 355, 361, 575 N.Y.S.2d 802, 581 N.E.2d 1048 [1991], quoting Richardson, Evidence § 200, at 176 [Prince 10th ed.] )" (People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 105, 843 N.E.2d 727, 732) —"may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" (People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226 [citing People v. Nieves, 67 N.Y.2d 125, 131, 501 N.Y.S.2d 1, 492 N.E.2d 109]; see also, People v. Brown, 80 N.Y.2d 729, 734–735, 594 N.Y.S.2d 696, 610 N.E.2d 369 [present sense impressions]; People v. Brown, 70 N.Y.2d 513, 518–519, 522 N.Y.S.2d 837, 517 N.E.2d 515 [excited utterances] )" (Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 595, 744 N.E.2d 128, 130). For self-evident reasons, the investigator's spreadsheet and testimony, both based upon his review of the defendant's bank records, are hearsay. The People have not identified any exception to the hearsay rule rendering such evidence legally admissible. Although the bank records subpoenaed by the People could possibly fall within the business records exception, assuming they are legally obtained, in proper form and accompanied by the requisite sworn statement ( CPL § 190.30[8] ), the spreadsheet does not constitute a "business record" under the statute since that term "does not include any records prepared by law enforcement agencies ..." ( CPL § 190.30[8][b] ).

C.

Exacerbating the inadmissibility of the investigator's testimony and spreadsheet is the ultra vires method employed by the former district attorney to obtain the defendant's bank records. The subpoena duces...