People v. Ehrlich

• Decision Date: 31 July 1987
• Citation: 518 N.Y.S.2d 742,136 Misc.2d 514
• Parties: The PEOPLE of the State of New York, v. Bernard EHRLICH, Stanley M. Friedman, and Marvin B. Kaplan, Defendant.
• Court: New York Supreme Court

Page 742

518 N.Y.S.2d 742

136 Misc.2d 514

The PEOPLE of the State of New York, v. Bernard EHRLICH, Stanley M. Friedman, and Marvin B. Kaplan, Defendant.

Supreme Court, New York County Extraordinary Term.

July 31, 1987.

Robert M. Morgenthau, Dist. Atty., John W. Moscow, Asst. Dist. Atty., New York City, for the people.

Peter J. Driscoll, Kostelanetz & Ritholz, New York City, for defendant Bernard Ehrlich.

Gerald L. Shargel, New York City, for defendant Stanley M. Friedman.

Gerald Lefcourt, New York City, for defendant Marvin B. Kaplan.

MARIE G. SANTAGATA, Justice.

Defendants, by separate motions, moved to dismiss this indictment on the grounds that the District Attorney failed to give the Grand Jury adequate legal instructions CPL § 190.25(6) and tainted the proceedings by presenting evidence of criminal conduct not charged in this indictment. (CPL §§ 210.20(1)[c]; 210.35[5]). Other grounds for dismissal alleged by the defendants are not considered in view of this Court's decision and order herein.

Upon inspection of the Grand Jury minutes provided by the District Attorney, this Court finds that release of all or part of the transcript to the parties is unnecessary to assist this Court in deciding this motion. (CPL § 210.30[3]).

After due deliberation, the defendants' motions are granted to the extent and for the reasons to be set forth. (Page references are to Grand Jury Minutes) The indictment is dismissed with leave to the District Attorney to represent to the same or another Grand Jury within 45 days of the issuance of this order. (CPL § 210.45[9][d]).

This Court finds that this Grand Jury proceeding was defective within the meaning of CPL § 210.35(5) because:

(1) highly prejudicial, inadmissible evidence of other crimes was presented to the Grand Jury. (CPL §§ 60.22; 190.65[1]; 190.30[6]); and

(2) the legal instructions to the Grand Jury were so inadequate and misleading that the integrity of the Grand Jury proceeding has been impaired. (CPL §§ 190.25[6]); 190.30[7] ).

Unique and unprecedented application and analyses of the law relating to (1) defective Grand Jury proceedings; (2) accomplice corroboration and the effect of the Molineux doctrine of common scheme or plan on the law of accomplice corroboration are presented herein.

BACKGROUND

The indictment charges counts of bribe giving, bribe receiving and conspiracy. It alleges in substance that MARVIN KAPLAN, STANLEY FRIEDMAN, co-defendants, and Robert Richards, an unindicted accomplice, in furthering the sale of a hand-held computer by Citisource, Inc. to the New York National Guard, agreed in 1984-85 with co-defendant BERNARD EHRLICH, that he would receive a bribe in return for the use of his influence as a public servant in the National Guard.

Portatech, a shell corporation, was organized by Richard Biaggi, Ehrlich's law partner and an unindicted accomplice. It is alleged that Portatech received a $7500 Citisource check intended as a bribe payment for Ehrlich.

DEFECTIVE GRAND JURY PROCEEDING

This Grand Jury proceeding is defective because it fails to conform to the requirements of Criminal Procedure Law Article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result. (CPL § 210.35[5]).

To warrant dismissal, there must be a significant failure to conform to one or more of the requirements set forth in CPL Article 190, which failure creates the possibility that prejudice may inure to the defendants (See, People v. DiFalco, 44 N.Y.2d 482, 487-488, 406 N.Y.S.2d 279, 377 N.E.2d 732; People v. Percy, 45 A.D.2d 284, 286, 358 N.Y.S.2d 434, aff. 38 N.Y.2d 806, 382 N.Y.S.2d 39, 345 N.E.2d 582)

Possible prejudice to the defendants was created by the District Attorney's failing to properly apply the rules of evidence (CPL § 190.30[1] and [6] ) and to correctly instruct the Grand Jury with respect to the significance, legal effect and evaluation of evidence. (CPL § 190.30[7]).

Inadmissible Testimony

A witness who was admittedly a corrupt public official testified to a prior uncharged act of bribery occurring between April 1982 and June 1983 (pp. 873-894). He testified that co-defendants Kaplan and Friedman offered him a bribe in connection with the sale of the hand-held computer to the New York City Parking Violations Bureau. (pp. 877, 879, 881-882).

The District Attorney told the Grand Jury that this witness' testimony could corroborate the testimony of the two unindicted accomplices (pp. 862-864, 1104, 1112), and that the prior incident and the present crime were part of a common scheme or plan (pp. 1112-1113). He bolstered the witness by reference to his previous appearances in court to give evidence (p. 894, see also 867); and instructed the jurors not to vote unless they had heard this witness' testimony (p. 1107). The District Attorney made this witness crucial to the People's case.

The testimony of this witness was inadmissible as a matter of law.

At trial, the question of admissibility of a prior uncharged crime is made by the Court as a matter of law. It is not left to the jury to decide as a question of fact because of the potential for prejudice. (People v. Dellarocco, 86 A.D.2d 720, 721, 446 N.Y.S.2d 567. See also, People v. Molineux, 168 N.Y. 264, 306, 61 N.E. 286; Fisch, New York Evidence (2nd ed.) § 26. Compare, People v. Jennings, 69 N.Y.2d 103, 114, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079)

During this Grand Jury presentation, the determination was made by the District Attorney as its legal advisor. (CPL § 190.25[6]). The District Attorney introduced evidence of the prior uncharged crime as part of a common scheme or plan pursuant to the seminal case. People v. Molineux, supra. This was error.

To be part of a common scheme or plan, there must be "strong similarities of time, place and circumstances", and a substantial nexus between the crime presently charged and the one sought to be introduced. Some connection between the crimes must exist in the mind of the actor, uniting them for the accomplishment of a common purpose. (People v. Dellarocco, 86 A.D.2d 720, 720-721, 446 N.Y.S.2d 567). A mere repetition of criminal conduct does not constitute a common scheme. There must be additional evidence which gives rise to a natural inference that the criminal acts are the individual manifestation of an overall plan or design. (People v. Fiore, 34 N.Y.2d 81, 85, 356 N.Y.S.2d 38, 312 N.E.2d 174). This connection must clearly appear from the evidence. (People v. Molineux, supra, 168 N.Y. at 306, 61 N.E. 286).

The prior act of bribery in this case was a separate and independent transaction. There was nothing in the prior crime that evinced any preconceived general plan or design that encompassed the present crime. There was no concurrence of time, place or circumstance that joined them as one. (People v. Grutz, 212 N.Y. 72, 105 N.E. 843). This case is distinguishable from People v. Duffy, 212 N.Y. 57, 105 N.E. 839 where there was a systematic scheme of collecting bribes evidenced by a written list of bribe givers and of collections made pursuant to a system that joined the prior act of bribery with the crime charged. There is no such intertwining here, no "visible connection", tending to prove the commission of this crime. (People v. Molineux, supra, 168 N.Y. at p. 309, 61 N.E. 286).

Had the evidence of the prior uncharged crime been part of a common scheme or plan, its admissibility would still be subject to balancing the probative value of the evidence against its potential for prejudice to the defendants. (People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v. Santarelli, 49 N.Y.2d 241, 247, 425 N.Y.S.2d 77, 401 N.E.2d 199; People v. McKinney, 24 N.Y.2d 180, 184, 299 N.Y.S.2d 401, 247 N.E.2d 244. See also, Fisch, New York Evidence (2nd ed.), supra, § 209; Prince, Richardson on Evidence [10th Ed.], § 170). During the course of this presentation, there was much unfavorable media attention concerning one of the co-defendants and the Parking Violations Bureau. The climate was ripe for possible prejudice to spill over to all the defendants.

Assuming arguendo that the prior uncharged crime and the crime charged in this indictment were so intertwined that they came within the purview of a common scheme or plan and that the probative value of the witness' testimony outweighed the prejudice, the testimony, although admissible, could not perform the function set forth by the District Attorney.

It could not corroborate the testimony of the accomplice in this crime because an accomplice may not corroborate another accomplice if the crimes are related. (People v. Jelke, 1 N.Y.2d 321, 333, 152 N.Y.S.2d 479, 135 N.E.2d 213). Implicit in the common scheme or plan theory is that the prior and the present crimes embrace each other thus becoming related and destroying the corroborating effect of the witness. (People v. Cona, 49 N.Y.2d 26, 35, 424 N.Y.S.2d 146, 399 N.E.2d 1167; People v. Cobos, 57 N.Y.2d 798, 801-802, 455 N.Y.S.2d 588, 441 N.E.2d 1106).

The District Attorney also elicited testimony from this same witness that the defendant Kaplan was a "good" friend of a third party who was a known briber. There is no existing exception to the rules of evidence known to this Court permitting such inflammatory testimony.

Additionally, this witness testified to bad acts of co-defendant Friedman that were totally irrelevant to the uncharged crime or to this indictment.

He also testified to a brief conversation between himself and one of the two unindicted accomplices who testified in this proceeding. This unsubstantiated hearsay conversation concerning co-defendants Friedman and Ehrlich's supposed involvement in the present crime. (pp. 890-892) was inadmissible.

The testimony of this witness impaired the integrity of the Grand Jury resulting in substantial prejudice to the defendants. It showed a criminal propensity of the defendants and it...