People v. Hardy

• Decision Date: 22 October 2013
• Citation: 976 N.Y.S.2d 774
• Parties: The PEOPLE of the State of New York, v. Jeremy J. HARDY, Defendant.
• Court: New York County Court

976 N.Y.S.2d 774

The PEOPLE of the State of New York,

v.Jeremy J. HARDY, Defendant.

County Court, Clinton County, New York.

Oct. 22, 2013.

Andrew J. Wylie, Esq., Clinton County District Attorney, (Douglas G. Collyer, Esq., of counsel), Plattsburgh.

O'Connell and Aronowitz, P.C. (Dean C. Schneller, Esq.) Plattsburgh, for the 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, compelling discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief.

The defendant is charged by a one-count indictment with having committed the crime of criminal possession of marijuana in the second degree ( Penal Law § 221.25 ), a class D felony. The charges arise out of an incident alleged to have occurred on or about May 24, 2013 in the town and city of Plattsburgh, Clinton County, when the defendant is alleged to have possessed more than sixteen ounces of marijuana.

The defendant's pretrial motion consists of a notice of motion dated August 16, 2013, an affirmation of Dean C. Schneller, Esq. dated August 15, 2013 with exhibits A through G The People oppose the motion by an affirmation of Douglas G. Collyer, Esq. dated August 26, 2013. Since the defendant has moved to dismiss the indictment for defects in the grand jury proceeding and insufficient evidence, the defendant's motion to inspect the grand jury minutes is granted, and this Court has reviewed the grand jury minutes in order to determine the issues raised.

I.

"[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 [1966] ; see also People v. Howell, 3 N.Y.2d 672, 675, 171 N.Y.S.2d 801, 803, 148 N.E.2d 867, 868 [1958] ). 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 [1975] ; People v. Lott, 104 A.D.2d 710, 480 N.Y.S.2d 597 [3d Dept., 1984] ; People v. Delameter, 96 A.D.2d 629, 464 N.Y.S.2d 878 [3d Dept., 1983] ), 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 [1995] ; People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 83, 464 N.E.2d 447, 451 [1984] ; People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418 [1984] ; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500 [1st Dept., 1973], affirmed 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432 [1973] ). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt (cf. People v. Fellman, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569 )" ( People v. Mayo, supra at 1004, 374 N.Y.S.2d at 609, 337 N.E.2d at 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 [1974] ).

A grand jury is empowered to indict a person for a crime only upon "legally sufficient evidence" ( CPL § 190.65[1] ), defined as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof ..." ( CPL § 70.10[1] [italics added] ). Thus, 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 [1993] ) with limited exceptions, including but not limited to: 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" ( CPL § 190.30[2] ) and others, including reports electronically transmitted ( CPL § 190.30[2–a] ); sworn statements by individuals reciting their ownership or possessory rights to real or personal property ( CPL § 190.30[3] [a-d, f-g] ); sworn statements by dealers as to the value of specified property ( CPL § 190.30[3][e] ); sex offender registration documents ( CPL § 190.30[3–a] ); videotaped statements of child witnesses ( CPL § 190.30[4] ); 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 [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 written¹ 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 [2005] )—" ‘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 [2001] ).

II.

With that backdrop, review of the minutes of the grand jury proceeding reveals that the evidence before the grand jury consisted of the testimony of a member of the City of Plattsburgh Police Department assigned to the Drug Enforcement Task Force, and seven photographs which were marked as exhibits and received into evidence. In sum, the officer testified that a wiretap investigation of another individual identified the defendant as being involved in the drug trade in Plattsburgh, that a confidential informant possessed text messages from the defendant relative to the availability of marijuana, that during surveillance of the building in which the defendant had his apartment an individual was observed (by others) removing an item from the engine compartment of a vehicle and taking it into the building, and that execution of a search warrant at the defendant's apartment resulted in over five pounds of marijuana being seized.

Much of the grand jury presentation consisted of inadmissible hearsay evidence. The testimony of the officer regarding the wire tap investigation on "an associate and business partner, per se, of Mr. Hardy" pursuant to an eavesdropping warrant, and that "during that wire tap investigation, there had been numerous text messages that we have intercepted identifying Mr. Hardy as an active participant in the trafficking of large amounts of marijuana from the [St. Regis Mohawk] reservation to the Plattburgh area and selling same in the Plattsburgh area." None of those intercepted communications forming the basis for this testimony were placed into evidence before the grand jury, and this officer did not state that he overheard those conversations and identified the defendant as a participant.

The evidence of text messages received by a confidential informant from the defendant constituted inadmissible evidence. The officer testified that he developed a relationship with an unnamed confidential informant on May 23, 2013 and that on May 24, 2013 he took two photographs of the informant's cell phone purporting to show text messages to and from the defendant and that informant. The officer testified that the photographs "truly and accurately depict statements from the Defendant, Jeremy Hardy, via text." These photographs depict the name "Jeremy Hardy" with what appears to be four separate text messages, and the officer read them to the grand jury. No testimony was offered or elicited establishing that the officer was a participant in the text message conversations or witnessed the exchange of the text messages between the confidential informant and the defendant, or that the officer had any other personal knowledge that the text messages actually came from the defendant. A sufficient foundation establishing the authenticity of this evidence before the grand jury was not established (see People v. Agudelo, 96 A.D.3d 611, 947 N.Y.S.2d 96 [2d Dept., 2012], lv. denied 20 N.Y.3d 1095, 965 N.Y.S.2d 791, 988 N.E.2d 529 [2013] ; People v. Pierre, 41 A.D.3d 289, 838 N.Y.S.2d 546 [1st Dept., 2007] [witness sent instant message to defendant and received a reply, and testified to defendant's screen name] ). In fact, there was no foundation for the admission into evidence of the recorded...