People v. Johnson

• Decision Date: 29 July 1992
• Citation: 155 Misc.2d 791,590 N.Y.S.2d 153
• Parties: The PEOPLE of the State of New York v. Maurice JOHNSON, Defendant.
• Court: New York Supreme Court

Page 153

590 N.Y.S.2d 153

155 Misc.2d 791

The PEOPLE of the State of New York v. Maurice JOHNSON, Defendant.

Supreme Court of New York Monroe County.

July 29, 1992.

Howard R. Relin, Dist. Atty. (Asst. Dist. Atty., Angela Reyes, of counsel), for the People.

Edward J. Nowak, Public Defender (Asst. Public Defender, Jeffrey Jacobs, of counsel), for defendant.

DONALD J. MARK, Justice.

This is an application by the defendant, who is charged with the crimes of Robbery 1st Degree and Petit Larceny, to dismiss the indictment pursuant to CPL § 210.20(1)(c), upon the ground that the Grand Jury proceeding was defective in eight respects.

The first seven allegations of improper conduct on the part of the prosecutor may be summarily disposed of as follows:

(1) The brief hiatus in the defendant's testimony to obtain a ruling from the presiding judge was not unlawful (see People v. Doe, 151 Misc.2d 829, 574 N.Y.S.2d 453). (2) The defendant by testifying subjected himself to impeachment on his past illegal conduct (see People v. Thompson, 116 A.D.2d 377, 501 N.Y.S.2d 381). (3) The Grand Jury was made aware that the defendant requested that witnesses be called (see People v. McCullough, 141 A.D.2d 856, 530 N.Y.S.2d 198). (4) The Grand Jury need not be informed of the prior inconsistent statement of a prosecution witness (see People v. Holmes, 118 A.D.2d 869, 500 N.Y.S.2d 355). (5) The defendant was able to testify essentially to the same information as the non-received map (see People v. Leon, 148 A.D.2d 752, 539 N.Y.S.2d 483; People v. Lloyde, 106 A.D.2d 405, 482 N.Y.S.2d 326). (6) The Grand Jury need not be informed of material which would impeach a prosecution witness (see People v. Martucci, 153 A.D.2d 866, 545 N.Y.S.2d 385). (7) The prosecutor properly interrupted the defendant to preclude hearsay or irrelevant testimony (see People v. Karp, 76 N.Y.2d 1006, 565 N.Y.S.2d 751, 566 N.E.2d 1156; People v. Martucci, supra ).

The defendant's eighth allegation--that the prosecutor improperly failed to call a witness requested by the Grand Jury--is more persuasive.

There was testimony that the robbery occurred on March 11, 1991, at 12:37 P.M. The defendant testified that he was shoveling snow in his driveway and sidewalk from 12:40 P.M. until 1:35 P.M., and that a neighbor observed this activity. The Grand Jury voted that the neighbor and also two other witnesses be called to testify before it and so informed the prosecutor. The defendant's attorney at the request of the prosecutor furnished the name of the neighbor, but the neighbor was not called as a witness despite the Grand Jury's direction. The prosecutor explained to the Grand Jury that the neighbor could not be called because the defendant's testimony that the neighbor saw him shoveling snow was hearsay. ¹

The testimony of the defendant that the neighbor saw him shoveling snow at the time of the robbery was not hearsay. The defendant did not testify that the neighbor had told him that she had seen him shoveling snow (see Testa v. Federated Dept. Stores, Inc., 118 A.D.2d 696, 499 N.Y.S.2d 971 ²). Such testimony was objectional, however, since it described the state of mind of a third party (see People v. Malizia, 92 A.D.2d 154, 160, 460 N.Y.S.2d 23, affd. 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364; People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632 ³; People v. Williams, 29 A.D.2d 780, 287 N.Y.S.2d 797 ⁴). Irrespective of any valid objection to this testimony of the defendant, the neighbor could have testified that she did in fact so observe the defendant and thereby support his alibi defense (see People v. Oakes, 168 A.D.2d 984, 564 N.Y.S.2d 931).

CPL § 210.20(1) provides that "After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment ... upon the ground that: (c) The Grand Jury proceeding was defective within the meaning of Section 210.35." CPL § 210.35 provides that "A Grand Jury proceeding is defective within the meaning of paragraph (c) of subdivision one of Section 210.20 when: 5. The proceeding otherwise fails to conform to the requirements of Article One Hundred Ninety to such a degree that the integrity thereof is impaired and prejudice to the defendant may result."

CPL § 190.50(3) provides that "The Grand Jury may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the Grand Jury desires to hear any such witness who was not called by the People, it may direct the District Attorney to issue and serve a subpoena upon such witness, and the District Attorney must comply with such direction. At any time after such a direction ... the People may apply to the Court ... for an order vacating ... such direction ... on the ground that such is in the public interest...."

Here, the Grand Jury directed the prosecutor to call the neighbor to testify before it as a witness (see Matter of Dwyer v. Wilcox, 92 A.D.2d 646, 459 N.Y.S.2d 923; People v. Doe, 148 Misc.2d 286, 560 N.Y.S.2d 177); the prosecutor in essence declined to comply for an inaccurate evidentiary reason (see People v. McCullough, supra ); and the prosecutor likewise failed to apply to the court for an order vacating the Grand Jury's direction (see Matter of Benjamin S., 83 A.D.2d 630, 441 N.Y.S.2d 698, revd. on otr. grds. 55 N.Y.2d 116, 447 N.Y.S.2d 905, 432 N.E.2d 777). Under these circumstances, CPL § 190.50(3) has obviously been violated by the prosecutor.

However, a violation of CPL § 190.50(3), standing alone, does not entitle the defendant to a dismissal of the indictment, and a dismissal will be warranted only upon the additional showing of the possibility of prejudice (People v. Collins, 154 A.D.2d 901, 545 N.Y.S.2d 959; People v. Caruso, 125 A.D.2d 403, 509 N.Y.S.2d 361, People v. Percy, 45 A.D.2d 284, 358 N.Y.S.2d 434, affd. 38 N.Y.2d 806, 382 N.Y.S.2d 39, 345 N.E.2d 582; People v. De Ruggiero, 96 Misc.2d 458, 409 N.Y.S.2d 88, affd. 77 A.D.2d 821, 429 N.Y.S.2d 340). ⁵ The test for determining in what situations the prosecutor is obligated to present exculpatory evidence to the Grand Jury is whether such evidence might materially influence the Grand Jury's investigation (People v. Martucci, supra; People v. Bartolomeo, 126 A.D.2d 375, 513 N.Y.S.2d 981; People v. Sepulveda, 122 A.D.2d 175, 504 N.Y.S.2d 712; People v. Monroe, 125 Misc.2d 550, 480 N.Y.S.2d 259). ⁶ That test is applicable to this violation.

The case law in analogous situations suggests that the failure of the prosecutor to comply with the Grand Jury's direction for the production of alibi testimony satisfies this criterion.

People v. Sepulveda, supra, did not dismiss the indictment where the prosecutor did not inform the Grand Jury of alibi testimony adduced at a prior trial, because the defendant waived his right by not requesting the Grand Jury to call his alibi witnesses. People v. Friedman, 97 A.D.2d 738, 469 N.Y.S.2d 9, did not dismiss the indictment where the prosecutor became aware of the defendant's alibi witnesses for the first time at trial, because there was no prosecutorial misconduct in the initial Grand Jury submission. These cases demonstrate that the prosecutor must arrange for alibi witnesses to be produced before the Grand Jury when requested by the defendant; an identical request by the Grand Jury should not be treated any differently. People v. Rubin, 77 A.D.2d 578, 429 N.Y.S.2d 738, dispelled any doubt as to the prosecutor's...