People v. Foster
Decision Date | 16 January 2001 |
Citation | 720 N.Y.S.2d 98,279 A.D.2d 317 |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>DUSHON FOSTER, Respondent. |
Court | New York Supreme Court — Appellate Division |
This action arises out of an altercation between defendant and Correction Officer Barry Pankey, which occurred while defendant was being transferred from his cell to the courtroom in the Bronx Criminal Court building. A Grand Jury proceeding commenced on April 14, 1999 and on that date, the Grand Jurors heard testimony from the complainant, Officer Pankey.
The case was adjourned until April 16, 1999, at which time defendant testified, and was adjourned again until April 23, 1999, when the Grand Jury heard testimony from a Correction Officer who had witnessed the altercation.
Thereafter, on April 27, 1999, the Grand Jury heard testimony from a Captain in the Department of Correction, at the conclusion of which the prosecutor charged the Grand Jury. Later that day, the following took place, on the record, in the Grand Jury room:
On April 30, 1999, additional testimony was heard and various medical records were entered into evidence. The Grand Jury was then charged a second time and subsequently voted a true bill. In an omnibus motion dated July 27, 1999, defendant requested, inter alia, that the court inspect the Grand Jury minutes and dismiss the indictment on the ground that prosecutorial abuse impaired the integrity of the proceedings. On September 8, 1999, the court held that the Grand Jury minutes were unclear and, accordingly, ordered an evidentiary hearing to determine what occurred on April 27, 1999.
A hearing was subsequently held on October 12, 1999, at which time David Burke, the Grand Jury foreperson, testified that the Grand Jurors heard testimony from Officer Pankey, defendant and other witnesses and then began deliberating on the case. The foreperson indicated that there were experienced people on the Grand Jury who found the evidence insufficient. The foreperson maintained that the Grand Jury "demanded more evidence"; that the prosecutor did not speak with him prior to the decision regarding obtaining additional evidence; that it was he who spoke to the prosecutor after calling him to a partition by the door; and that he explained to the prosecutor the need for further evidence and that there was a failure to obtain 12 votes to either dismiss or indict. The court then questioned Mr. Burke regarding the specifics of the failure to indict or dismiss and the following ensued:
Further, Mr. Burke was very clear that the Grand Jury demanded more evidence and that more than 12 people joined in that demand.
The foreperson, when questioned on cross examination as to whether the prosecutor asked what was needed in order to vote a true bill, responded Further, the prosecutor, upon being advised of the Grand Jury's demand, did not make any facial...
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5.18 - VI. Grand Jury Actions
...N.Y.S.2d 718 (1988); People v. Infante, 124 A.D.2d 86, 511 N.Y.S.2d 293 (2d Dep’t 1987).[684] . CPL § 190.60. [685] . People v. Foster, 279 A.D.2d 317, 720 N.Y.S.2d 98 (1st Dep’t 2001). Thus, if 12 grand jurors do not agree to take a particular action, then a negative action results (e.g., ......