People v. Gallo

• Decision Date: 07 January 2016
• Citation: 135 A.D.3d 982,22 N.Y.S.3d 262
• Parties: The PEOPLE of the State of New York, Appellant, v. Forrest F. GALLO, Respondent.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 982

22 N.Y.S.3d 262

The PEOPLE of the State of New York, Appellant,

v.Forrest F. GALLO, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 7, 2016.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Kristen L. Grabowski of counsel), for appellant.

Torrance L. Schmitz, Vestal, for respondent.

Before: Lahtinen, J.P., McCARTHY, EGAN JR., LYNCH and DEVINE, JJ.

EGAN JR., J.

Appeal from an order of the County Court of Broome County(Smith, J.), entered May 12, 2014, which granted defendant's motion to dismiss the indictment.

In May 2013, defendant was indicted and charged with one count of criminal sale of marihuana in the second degree.The charge stemmed from an incident that occurred in December 2012 when defendant, then a 16–year–old high school student, procured what he described as an approximately one-half gram bag of marihuana for a fellow 14–year–old student.In August 2013, defense counsel filed an omnibus motion seeking, among other things, to dismiss the indictment pursuant to CPL 210.30, contending that the evidence before the grand jury was legally insufficient to sustain the charged crime.After reviewing the grand jury minutes, County Court(Lehmann, J.) denied defendant's motion to dismiss the indictment.

Defendant waived his right to a jury trial and, when the parties appeared before County Court(Smith, J.) in May 2014 for the scheduled bench trial,¹ defense counsel raised the issue of the People's failure to instruct the grand jury as to an agency defense.County Court asked defense counsel to submit a formal motion and, following receipt of the parties' respective submissions, County Court granted defendant's motion and dismissed the indictment as defective within the meaning of CPL 210.35(5) —with leave for the People to re-present the matter to another grand jury within 30 days.This appeal by the People ensued.

The People initially contend that County Court erred in reinspecting the grand jury minutes to determine whether, due to the People's failure to instruct the grand jury as to the defense of agency, the underlying proceeding was defective—contending that Judge Lehmann's initial ruling as to the sufficiency of the grand jury proceedings constituted the law of the case.We disagree.Although this "judicially crafted policy" is applicable to criminal matters (People v. Evans,94 N.Y.2d 499, 503–504, 706 N.Y.S.2d 678, 727 N.E.2d 1232[2000] ), we find that its application is not warranted here.Defendant's omnibus motion indeed requested, among other things, that Judge Lehmann review the instructions given to the grand jury "as potentially being misleading and inconsistent with the law."However, the crux of defendant's initial motion—brought pursuant to CPL 210.30(3) —was addressed to the legal sufficiency of the evidence before the grand jury.Defendant's subsequent motion relative to the People's failure to charge the grand jury as to an agency defense—brought pursuant to CPL 210.35(5) —contended that the grand jury proceeding itself was defective for "fail[ing] to conform to the requirements of [CPL article 190] to such degree that the integrity thereof [was] impaired and prejudice to the defendant may [have] result[ed]"(CPL 210.35[5] ).Given that defendant's respective motions were brought pursuant to—and ultimately resolved under—decidedly different statutes, we do not find that County Court abused its discretion in declining to apply the law of the case doctrine to this matter.

Turning to the merits, while there is no requirement that the grand jury "be charged with every potential defense suggested by the evidence"(People v. Valles,62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418[1984] ), the People"must charge ... those defenses that the evidence will reasonably support"(People v. Coleman,4 A.D.3d 677, 678, 773 N.Y.S.2d 146[2004], lvs. denied2 N.Y.3d 797, 781 N.Y.S.2d 296, 297, 814 N.E.2d 468, 469[2004], 3 N.Y.3d 672, 784 N.Y.S.2d 11, 817 N.E.2d 829[2004];accordPeople v. Angona,119 A.D.3d 1406, 1407, 989 N.Y.S.2d 746[2014], lv. denied25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967[2015] ).As this Court recently reiterated, "[u]nder the agency doctrine, a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer.Whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question [to be resolved] ... based upon [considerations of] factors such as the relationship between the buyer and the defendant, who initiated the transaction, whether the defendant had previously engaged in drug transfers and whether he or she profited from the sale"(People v. Kramer,118 A.D.3d 1040, 1041–1042, 989 N.Y.S.2d 143[2014][internal quotation marks and citations omitted] ).

Here, the testimony before the grand jury revealed that the buyer—having been told by her stepbrother that it "was cool to try" marihuana—asked a friend where she could make such a purchase; the friend, in turn, pointed to defendant, the latter of whom apparently "was kind of friends" with the buyer's stepbrother.The buyer then approached defendant, gave him $10 to buy marihuana and was told to "come pick it up fifth period."...