People v. Howard
| Decision Date | 16 December 1991 |
| Citation | 152 Misc.2d 956,579 N.Y.S.2d 316 |
| Parties | The PEOPLE of the State of New York v. Michael HOWARD. |
| Court | New York Supreme Court |
Charles J. Hynes, Dist. Atty. (Chak Lee, of counsel), for people.
Legal Aid Society (Robert M. Baum and Calvin Simons, of counsel), for defendant.
As part of his motion for omnibus relief, defendant has moved, pursuant to CPL § 210.20(1)(b) and § 210.30(2) and (3), for Court inspection of the grand jury minutes and for dismissal of the indictment or reduction of the charges. The Court grants the motion for inspection, and upon so doing, makes the following findings:
On August 29, 1991, an Assistant District Attorney commenced presentation of the instant matter to the Grand Jury by examining the complaining witness, one Gary Burgess, who testified, in substance, that while making a bread delivery at 349 Pulaski Street, in Brooklyn, he was robbed by the defendant and two others, and that during the incident the defendant, armed with a handgun, fired the gun in his direction. At the conclusion of Burgess' testimony, the Assistant District Attorney concluded by stating, "unfortunately you will be hearing additional evidence and/or a charge on the law at a later time."
On September 9, 1991, a different Assistant District Attorney continued the presentation. The only witness called to testify was the defendant, accompanied by his attorney. After waiving immunity and being sworn, the defendant, in substance, testified that he was shot in the stomach on Pulaski Street, went to Woodhull Hospital, and approximately four days later was arrested for involvement in an incident of which he knew nothing.
After cross examining the defendant concerning his testimony, the Assistant District Attorney then inquired of the defendant whether it was not true that he had been convicted of a felony in 1986. The defendant asked for an opportunity to speak with his lawyer outside. The Assistant District Attorney stated that he could, and then suspended the proceeding, advising the Grand Jury that it would hear additional evidence and a charge on the law.
At some point later that same day, the Assistant District Attorney, without recalling the defendant to the stand to answer the last question put to him, and without presenting any other testimony, charged the Grand Jury on the law. Included in these instructions was one charging that as a matter of law, the defendant was an interested witness, a factor for the Grand Jury to keep in mind when determining the credibility and weight to be given his testimony. A further instruction charged the Grand Jury that there was evidence showing that the defendant had previously been convicted of a crime, a fact to be considered in evaluating the defendant's credibility, but that they were not to consider "that the defendant stood up and the proceedings were suspended after I asked him whether he had previously been convicted of a crime." A true bill was ultimately found.
CPL § 210.35(5) provides that on a motion to dismiss an indictment under § 210.20(1)(c), a grand jury proceeding is defective when it "... fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result." Thus, notwithstanding the fact that evidence may be legally sufficient to support the finding of an indictment, CPL § 210.35(5) requires only the possibility of prejudice to warrant dismissal. People v. DiFalco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732. Inadequate or incorrect legal instructions can be so misleading as to make an indictment defective even when it is supported by legally sufficient evidence. People v. Calbud, Inc., 49 N.Y.2d 389, 395, 426 N.Y.S.2d 238, 402 N.E.2d 1140. There is a judicial responsibility to prevent unfairness in Grand Jury proceedings, since the Grand Jury is "an arm of the Court." People v. Ianniello, 21 N.Y.2d 418, 424, 288 N.Y.S.2d 462, 235 N.E.2d 439.
Inasmuch as CPL § 210.35(5) is an "all embracive cowcatcher" subdivision (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 210.35, p. 139), each case relying on its provisions must be analyzed on an individual basis to determine whether the integrity of the Grand Jury was impaired and whether the possibility of prejudice existed. See People v. Sanchez, 125 Misc.2d 394, 398. Although the facts in the case at bar appear to make it one of first...
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People v. Thomas
...to his credibility and deprived him of a meaningful opportunity to tell his story in an impartial fashion (see, People v. Howard, 152 Misc.2d 956, 579 N.Y.S.2d 316). This prejudice, in turn, nullified his rights pursuant to CPL 190.50(5) and shifted the Grand Jury's attention away from the ......
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People v. Thomas
...to his credibility and deprived him of a meaningful opportunity to tell his story in an impartial fashion (see People v. Howard, 152 Misc.2d 956, 579 N.Y.S.2d 316). This prejudice, in turn, nullified his rights pursuant to CPL 190.50[5] and shifted the Grand Jury's attention away from the f......
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People v. Dzeloski
...or in the alternative a Huntley hearing, is denied. 1 See, People v. Lewis, 157 Misc.2d 937, 599 N.Y.S.2d 777; People v. Howard, 152 Misc.2d 956, 579 N.Y.S.2d 316 and People v. Sanchez, 125 Misc.2d 394, 479 N.Y.S.2d 602.2 See, People v. Hollis, 144 Misc.2d 259, 543 N.Y.S.2d 881, People v. K......
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