People v. Jennings, 638

• Decision Date: 18 December 1986
• Docket Number: No. 4379,No. 370,No. 369,No. 638,No. 4380,No. 640,638,640,4379,4380,369,370
• Citation: 69 N.Y.2d 103,504 N.E.2d 1079,512 N.Y.S.2d 652
• Parties: , 504 N.E.2d 1079 The PEOPLE of the State of New York, Respondent, v. John JENNINGS, Appellant. (Indictment/83.) The PEOPLE of the State of New York, Appellant, v. John JENNINGS and Angela Fiumefreddo, Respondents. (Indictment/83.) The PEOPLE of the State of New York, Appellant, v. SENTRY ARMORED COURIER CORP. and Sentry Investigations Corp., Respondents. (Indictment/83.) The PEOPLE of the State of New York, Appellant, v. John FINNERTY, Respondent. (Indictment/83.) The PEOPLE of the State of New York, Respondent, v. John JENNINGS and Angela Fiumefreddo, Appellants. (Indictment/84.) The PEOPLE of the State of New York, Appellant, v. John JENNINGS, Respondent. (Indictment/84.)
• Court: New York Court of Appeals Court of Appeals

Page 652

512 N.Y.S.2d 652

69 N.Y.2d 103, 504 N.E.2d 1079

The PEOPLE of the State of New York, Respondent, v. John JENNINGS, Appellant. (Indictment No. 638/83.)

The PEOPLE of the State of New York, Appellant, v. John JENNINGS and Angela Fiumefreddo, Respondents.

(Indictment No. 640/83.)

The PEOPLE of the State of New York, Appellant, v. SENTRY ARMORED COURIER CORP. and Sentry Investigations

Corp., Respondents. (Indictment No. 4379/83.)

The PEOPLE of the State of New York, Appellant, v. John FINNERTY, Respondent. (Indictment No. 4380/83.)

The PEOPLE of the State of New York, Respondent, v. John JENNINGS and Angela Fiumefreddo, Appellants.

(Indictment No. 369/84.)

The PEOPLE of the State of New York, Appellant, v. John JENNINGS, Respondent. (Indictment No. 370/84.)

Court of Appeals of New York.

Dec. 18, 1986.

Mario Merola, Dist. Atty. (Peter D. Coddington and Steven R. Kartagener, New York City, of counsel), for appellant in indictments Nos. 640/83, 4379/83, 4380/83 and 370/84.

Joseph M. Darby, New York City, for John Jennings, respondent, appellant.

Francine Seiden, New York City, for Angela Fiumefreddo, respondent, appellant.

Richard M. Asche and Russell M. Gioiella, New York City, for Sentry Armored Courier Corp. and another, respondents.

Kevin P. Gilleece, White Plains, for John Finnerty, respondent.

Mario Merola, Dist. Atty. (Peter D. Coddington, New York City, and Marianne Karas, Tuckahoe, of counsel), for respondent in indictments Nos. 638/83 and 369/84.

OPINION OF THE COURT

TITONE, Judge.

On December 13, 1982, the Sentry Armored Courier Corp. warehouse in Bronx County was burglarized and robbed of some $11 million by individuals unconnected to Sentry, who were later apprehended and prosecuted. In the aftermath of the robbery, the Bronx County District Attorney's office focused its attention on Sentry's-own business practices. A series of indictments charging Sentry and its principals with various counts of larceny and misapplication of property ensued. The question presented for our consideration is whether the indictments' allegations concerning defendants' handling of the money entrusted to their care would, if proven, support convictions for the crimes charged.

I. PROCEDURAL HISTORY

The six indictments presently before us collectively charge defendants John Jennings, Angela Fiumefreddo, John Finnerty, Sentry Armored Courier Corp. and Sentry Investigations Corp. with several counts of grand larceny in the second degree and misapplication of property. At the time the indictments were issued, Sentry was principally engaged in transporting and storing large sums of cash and performing related services on behalf of its clients. Defendant Jennings was the president of the Sentry Armored Courier Corp., defendant Fiumefreddo was the senior vice-president of that corporation, and defendant John Finnerty was the vice-president and cashier of the Hudson Valley National Bank, which played a role in one of the alleged misappropriation "schemes."

The case has a complex factual and procedural history. The larceny and misapplication charges arose out of four separate courses of conduct, which the People claim demonstrate defendants' criminal mishandling of their clients' funds. The first Grand Jury to consider the People's evidence handed up five indictments. Of these, three were dismissed entirely by Justice Vitale, with leave to re-present. The other two indictments were sustained against defendants Jennings and Fiumefreddo but dismissed against the only named corporate defendant, Sentry Armored Courier Corp. The second Grand Jury handed up four new indictments, naming Jennings, Fiumefreddo, Finnerty, Sentry Armored Courier Corp. and Sentry Investigations Corp. as defendants. All six outstanding indictments were dismissed by the then Presiding Judge, Justice Goldfluss, on the ground that the proof before the Grand Jury was legally insufficient (see, 123 Misc.2d 560, 474 N.Y.S.2d 392). Two of the indictments, which named Jennings and Fiumefreddo as defendants, were reinstated on the People's appeal to the Appellate Division, 111 A.D.2d 678, 490 N.Y.S.2d 496, and the People, as well as defendants Jennings and Fiumefreddo, were granted leave to take cross appeals to this court.

II. THE THRESHOLD PROCEDURAL ISSUES

Initially, the People advance a number of procedural arguments in support of their position. First, they contend that all counts against Fiumefreddo and the corporate defendants should be reinstated because, unlike defendants Jennings and Finnerty, the corporate defendants did not make written motions to dismiss the new indictments against them and Fiumefreddo failed to move in writing either to dismiss the new indictment or to reargue Justice Vitale's prior denial of her motion to dismiss (see, CPL 210.45). Second, the People contend that defendant Jennings' written dismissal motion was flawed because it referred, in part, to an indictment that had been superseded, rather than to the replacement indictment. Finally, the People argue that those counts remaining from the first Grand Jury presentment, which had survived a dismissal motion before Justice Vitale, should not have been dismissed by Justice Goldfluss but instead should have been referred to Justice Vitale for reargument under the mandate of CPLR 2221.

We agree with the People that under CPL 210.45(1) a defendant must provide them with written notice of and a reasonable opportunity to respond to a motion to inspect and dismiss an indictment made under CPL 210.20. However, by failing to complain of the flaws they now assert, by either raising the problem before Justice Goldfluss made his decision or moving for reargument within a reasonable time thereafter, the People in this case waived their right to insist upon conformity with the procedural requirements of CPL 210.45(1) (see, People v. Singleton, 42 N.Y.2d 466, 470-471, 398 N.Y.S.2d 871, 368 N.E.2d 1237). Unlike the timing requirements of CPL 210.20(2) and 255.20, the written notice requirement of CPL 210.45(1) is not directly related to "the strong public policy to further orderly trial procedures and preserve scarce trial resources" (People v. Lawrence, 64 N.Y.2d 200, 207, 485 N.Y.S.2d 233, 474 N.E.2d 593; see also, Matter of Veloz v. Rothwax, 65 N.Y.2d 902, 493 N.Y.S.2d 452, 483 N.E.2d 127; People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147; People v. Selby, 53 A.D.2d 878, 385 N.Y.S.2d 335, affd. 43 N.Y.2d 791, 402 N.Y.S.2d 392, 373 N.E.2d 286). Rather, the rule's principal purpose is to ensure that the People have fair notice of the claims that the moving defendant intends to present to the court. Inasmuch as the requirements of CPL 210.45(1) are designed primarily to protect the People from unfair surprise, no overriding public policies are offended by treating the People's silence as a waiver of their right to written notice under that statute (cf. People v. Lawrence, supra ). We note that the People here have not shown how they were prejudiced either by the failure of Fiumefreddo and the corporate defendants to make formal written submissions or by the failure of defendant Jennings correctly to identify by number each indictment he was challenging.

Similarly, while we agree that, unless Justice Vitale was unavailable for referral, Justice Goldfluss should not have dismissed the counts that Justice Vitale had previously upheld (see, People v. Petgen, 55 N.Y.2d 529, 534, 450 N.Y.S.2d 299, 435 N.E.2d 669; see also, CPLR 2221), we conclude that the People's present argument presents no ground for reversal. Because of the People's failure timely to protest Justice Goldfluss' action, the present record is barren of facts from which we might conclude that Justice Vitale was available and able to entertain the motion had it been transferred to him by his colleague (see, CPLR 2221). Hence, we cannot say that the rule against collateral vacatur was violated here (see, Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676; cf. Hess v. Wessendorf, 102 A.D.2d 926, 477 N.Y.S.2d 515; Willard v. Willard, 194 App.Div. 123, 185 N.Y.S. 569; see also, Blasi v. Boucher, 30 A.D.2d 674, 291 N.Y.S.2d 960). ¹

III. THE PROPER STANDARD FOR REVIEW

Having determined that there are no procedural grounds for upsetting the Appellate Division order, we turn now to the proper standard for reviewing the sufficiency of evidence before a Grand Jury. The Grand Jury may not indict unless the People present evidence establishing a prima facie case of criminal conduct (see, People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affd. 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432). The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447).

In granting the motions to dismiss all of the indictments in this matter, however, the reviewing Justice erroneously applied a higher standard to determine whether the People's circumstantial evidence of a larcenous intent was sufficient. Citing People v. Ryan, 41 N.Y.2d 634, 394 N.Y.S.2d 609, 363 N.E.2d 334, People v. Borrero, 26 N.Y.2d 430, 311 N.Y.S.2d 475, 259 N.E.2d 902, People v. Cleague, 22 N.Y.2d 363, 292 N.Y.S.2d 861, 239 N.E.2d 617, People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785, and People v. Newman, 80 Misc.2d 975, 365 N.Y.S.2d 409, affd. 85 Misc.2d 761, 382 N.Y.S.2d 227, the court demanded that the People's evidence be " ' "wholly inconsistent with innocent intent or belief" ' " (123 Misc.2d 560, 564, 474 N.Y.S.2d 392). The cases cited to justify this heightened scrutiny, however, only addressed the question whether the circumstantial evidence of larcenous intent adduced at trial supported a petit jury's finding that guilt was established beyond a reasonable doubt. Manifestly, such cases are not controlling...