People v. Horne

• Decision Date: 05 October 1983
• Citation: 468 N.Y.S.2d 433,121 Misc.2d 389
• Parties: The PEOPLE of the State of New York v. Henry HORNE.
• Court: New York Supreme Court

Page 433

468 N.Y.S.2d 433

121 Misc.2d 389

The PEOPLE of the State of New York v. Henry HORNE.

Supreme Court, Criminal Term Kings County, Complex A.

Oct. 5, 1983.

Elizabeth Holtzman, Dist. Atty., Kings County (Richard Paley, Kings County, Asst. Dist. Atty., of counsel), for the People.

[121 Misc.2d 390] Caesar Cirigliano, Kings County Legal Aid, Brooklyn (Andrew I. Kossover, Brooklyn, of counsel), for defendant.

MEMORANDUM

JULIUS VINIK, Justice.

The defendant, as part of his omnibus motion, moves the court to inspect the grand jury minutes and upon inspection to dismiss the indictment. The defendant contends that the evidence submitted to the grand jury did not make a prima facie case and the instructions by the People rendered the proceeding defective.

In the instant case the defendant was indicted for the crimes of Robbery in the First Degree (1st count), Robbery in the Second Degree (2nd count), and Criminal Use of a Firearm in the First Degree (3rd count).

The motion to inspect the grand jury minutes is granted.

The court has examined the grand jury minutes for legal sufficiency pursuant to CPL 210.20(1)(b). The standard applied by the court is " * * * whether there was 'competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof.' (CPL 70.10, sub 1)." (People v. Warner-Lambert Co., 51 N.Y.2d 295, 298, 434 N.Y.S.2d 159, 414 N.E.2d 660.) In the context of a grand jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt (People v. Mayo, 36 N.Y.2d 1002, 1004, 374 N.Y.S.2d 609, 337 N.E.2d 124). Based upon this criteria, the court finds the evidence adduced before the grand jury legally sufficient to support counts 1 and 2 of the indictment. Count 3 will be dealt with later on in this decision.

Next, the court will consider whether the grand jury proceeding was defective (CPL 210.20[1]c). CPL 210.35(5), as is relevant, reads as follows:

"A grand jury proceeding is defective * * * when

(5) the proceeding otherwise fails to conform to the requirements of Article 190 to such degree that the integrity thereof is impaired and prejudice to the defendant may result."

The District Attorney, as legal advisor, is entrusted with the duty of instructing the grand jury concerning the law or any matter properly before it (see CPL 190.25[6] ). With respect to the grand jury instructions, it is normally sufficient for the District Attorney to read the appropriate Penal Law section (People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140). In this case, the District Attorney did read the appropriate Penal Law sections for counts one and two but certain other errors were committed during the grand jury proceeding.

Testimony was received into evidence that the defendant was arrested as a result of a conversation between the arresting officer and the complaining witness. This was error. Such testimony is impermissible bolstering since in effect it says that the defendant was arrested because the complaining witness identified him (People v. Brown, 91 A.D.2d 639, 456 N.Y.S.2d 821). In People v. Tufano, 69 A.D.2d 826, 415 N.Y.S.2d 42, the court held it was error to allow a detective to testify that he arrested defendant after a conversation with a codefendant, since such would indicate that the codefendant implicated the defendant and constitute an indirect use of hearsay statements. The court is also troubled by the three-week delay between the initial presentment on May 26, 1983 and the charge to the grand jury on June 14, 1983.

None of these errors either individually or collectively are so extreme that the integrity of the grand jury was impaired as to counts one and two. Therefore, the motion to dismiss those counts is denied.

The court will now examine count three. Although the district attorney read the appropriate penal law section for the crime of Criminal Use of a Firearm in the first degree, he failed to define or explain to the grand jury what class "B" violent felony offense was being used as the underlying felony. This was error. The grand jury could not know nor be asked to speculate on what class "B" violent felony offense would serve as the underlying felony or what the elements of such underlying felony would be.

While the crime of Robbery in the First Degree was not charged as the underlying class "B" violent felony offense, it is clear that such was the intent of the People. Whether such crime may properly serve as the underlying felony appears to be undecided in this jurisdiction. In People v. Serrano, 119 Misc.2d 321, 462 N.Y.S.2d 989, the court held that the crime of Criminal Possession of a Weapon, Second Degree, may not serve as the underlying felony for charging the crime of Criminal Use of a Firearm, but declined to pass on the question of whether any other class "B" or "C" violent felony offense may serve as the underlying felony (see Footnote, People v. Serrano, supra, p. 325, 462 N.Y.S.2d 989).

The crime of Criminal Use of a Firearm was created in 1980 as part of the gun control legislation. Its objective was to increase the penalties for those who use handguns during the commission of certain felonies (Hechtman's Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Pocket Part 1982-1983, p. 42; People v. Serrano, 119 Misc.2d 321, 325, 462 N.Y.S.2d 989, supra ). "This objective is advanced, albeit in a roundabout way, by converting certain B or C Violent Felony offenses (e.g., forcible rape in the first degree) which do not contain use or display of a gun as a statutory element of the crime (although such may be a factual element thereof) into armed felony offenses. As such, those offenses then become subject to mandatory prison sentences and stricter plea bargaining limitations (Hechtman's Practice Commentaries; McKinney's Cons.Laws of N.Y., Book 39, Pocket Part 1982-1983, p 42)" (People v. Serrano, 119 Misc.2d 321, 325, 462 N.Y.S.2d 989, supra ). Thus it is obvious that only violent felony offenses which are not armed felony offenses, should serve as underlying predicates when charging the crime of criminal use of a firearm. Since the crime of Robbery in the First Degree is already an armed felony offense, it would not appear to be the type of felony envisioned by the Legislature to be used as the underlying felony.

Use of a Robbery in the First Degree (PL 160.15[4] ), as the underlying felony, results in the following reading for the crime of Criminal Use of a Firearm (PL 265.09[2], count 3):

"A person is guilty of criminal use of a firearm in the first degree when he [forcibly steals property and when in the commission of the crime or immediate flight therefrom, he or another participant in the crime displays what appears to be a handgun] * * * and * * * displays what appears to be a [handgun]."

Such a redundant reading makes little sense. It is inconceivable that the Legislature intended that display of a handgun be proven twice. By making possession of a loaded weapon a separate subdivision of...