People v. Erber

Decision Date05 December 1994
Citation619 N.Y.S.2d 344,210 A.D.2d 250
PartiesThe PEOPLE, etc., Respondent, v. Michael ERBER, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Natalie Rea, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Ann Bordley and Victor Barall, of counsel), for respondent.

Before COPERTINO, J.P., and PIZZUTO, SANTUCCI and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered October 15, 1991, convicting him of robbery in the first degree, attempted aggravated assault upon a police officer (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court improperly denied his motion to dismiss the indictment based on the fact that the People failed to present to the Grand Jury exculpatory evidence which would have established the affirmative defense of duress is without merit. "[T]he People maintain broad discretion in presenting their case to the Grand Jury and need not seek [out] evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 626 N.E.2d 630; People v. Lancaster, 69 N.Y.2d 20, 26, 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). In determining whether that discretion was improperly exercised, the test is the potential of the defense in question to eliminate a "needless or unfounded prosecution" (People v. Lancaster, supra, 69 N.Y.2d at 27, 511 N.Y.S.2d 559, 503 N.E.2d 990). Here, the allegedly exculpatory evidence neither made out a complete legal defense nor was of such quality as to create the potential to eliminate a "needless or unfounded prosecution" (People v. Lancaster, supra, at 27, 511 N.Y.S.2d 559; People v. Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418). Thus, the People's failure to present this evidence to the Grand Jury was permissible (see, People v. Mitchell, supra, 82 N.Y.2d at 515, 605 N.Y.S.2d 655, 626 N.E.2d 630; People v. Ramjit, 203 A.D.2d 488, 612 N.Y.S.2d 600).

In addition, it was not an improvident exercise of discretion for the trial court to deny the defendant's requests to relieve assi...

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4 cases
  • People v. Gundy
    • United States
    • New York Supreme Court — Appellate Division
    • December 16, 1996
    ...on the eve of trial, for an adjournment to retain new counsel (see, People v. Winslow, 222 A.D.2d 722, 636 N.Y.S.2d 68; People v. Erber, 210 A.D.2d 250, 619 N.Y.S.2d 344; People v. Gloster, 175 A.D.2d 258, 260, 572 N.Y.S.2d In addition, the court did not err by relieving counsel in the midd......
  • People v. Dominguez
    • United States
    • New York Supreme Court — Appellate Division
    • December 5, 1994
  • People v. Winslow
    • United States
    • New York Supreme Court — Appellate Division
    • December 29, 1995
    ...concluded that the defendant had ample time to retain new counsel and that his motion was a dilatory tactic (see, People v. Erber, 210 A.D.2d 250, 619 N.Y.S.2d 344; People v. Gloster, 175 A.D.2d 258, 260, 572 N.Y.S.2d Any error regarding the prosecutor's opening and summation comments was h......
  • People v. Erber
    • United States
    • New York Court of Appeals Court of Appeals
    • February 28, 1995
    ...380 624 N.Y.S.2d 380 85 N.Y.2d 861, 648 N.E.2d 800 People v. Erber Court of Appeals of New York Feb 28, 1995 Ciparick, J. 210 A.D.2d 250, 619 N.Y.S.2d 344 App.Div. 2, Kings Denied. ...

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