People v. Jose C.
| Decision Date | 11 March 1985 |
| Citation | 487 N.Y.S.2d 499,127 Misc.2d 689 |
| Parties | The PEOPLE of the State of New York v. JOSE C. and Elvis R., Defendants. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., N.Y. County (James H. Fogel and Kristine Hamann, Asst. Dist. Attys., of counsel), for the People.
Valerie J. VanLeer-Greenberg, New York City, for defendant Jose C.
Seymour Ostrow, New York City, for defendant Elvis R STEPHEN G. CRANE, Justice:
The People moved pursuant to CPL 190.75(3) for authorization to resubmit to another grand jury the charges that the Fourth February-March 1984 Grand Jury had dismissed against defendants Jose C. and Elvis R. 1 The standards the court must apply in deciding whether to grant this motion were summarized in People v. Dykes, 86 A.D.2d 191, 195, 449 N.Y.S.2d 284:
We have at bar perhaps the first case to give dimension to the second test mentioned in Dykes: "that the Grand Jury failed to give the case a complete and impartial investigation." 2
On March 15, 1984, the Fourth February-March 1984 Grand Jury heard testimony from three police officers. The People submitted all but the charge of attempted murder, second degree, reserving this count until the jurors could hear testimony from Stanley M., the civilian victim under this charge. The Grand Jury then voted to indict defendant Elvis R. for the various crimes the prosecutor had submitted to that body including counts of attempted murder, first degree. 3 But the case remained open for the reserved testimony of Stanley M. and to give the defendant an opportunity to exercise his statutory right to testify (CPL 190.50[5] ). Therefore, the Grand Jury heard Stanley M., Elvis R. and Jose C. testify. Because the testimony of Jose C. conflicted with all the other witnesses including Elvis R., the People sought an indictment against Jose C. for perjury. Ultimately, the Grand Jury voted to dismiss all charges against both defendants, thereby reversing itself as to defendant Elvis R., now that they had heard him and Jose testify.
The testimony showed that defendant, Elvis R., with a substantial number of Elvis testified, too, that there was a crowd, but that it was Stanley who had the gun. When Stanley dropped it, Elvis picked the gun up from the ground. In fear, he fired some shots into the sidewalk. When Elvis saw two other individuals with guns who shot at him, he did not know they were police officers. He ran, carrying the pistol into Central Park.
friends, had attended a party near Columbus Avenue and 96th Street, in the County of New York. A dispute broke out, and Elvis and his friends found themselves on the street confronting Stanley M. Elvis pulled a gun and fired at Stanley. Two officers out of uniform saw this, and, when Elvis pointed his gun, one officer fired a shot. Elvis ran north. The pursuing officers exchanged fire with Elvis; one officer and Elvis sustained wounds during the pursuit. Eventually, Elvis was captured in Central Park. The gun was nearby.
Jose C. testified as well. From his observations, he did not even see Elvis with a gun but saw another man firing toward an individual in the crowd. 4
It seems that the acting foreman of the Fourth February-March 1984 Grand Jury, responding to the invitation of the impanelling justice, addressed a lengthy letter to Honorable Robert M. Haft, the Justice then presiding in this part. The grand juror expressed many frustrations with the then completed Grand Jury service and criticized the attitude of prosecutors that, according to the writer, gave the impression that the Grand Jury was expected to be a rubber stamp.
Some five months after the February-March 1984 Grand Jury dismissed all charges against both defendants, the People made this motion to resubmit. 5 Based mainly on the letter of the acting foreman, they argue that the grand jurors had failed to give the case a complete and impartial investigation.
The People also contend that even if the Grand Jury had rejected all testimony of the prosecution witnesses and believed only Elvis R., it should at least have indicted for criminal possession of a weapon, third degree, and reckless endangerment, first degree--if the grand jurors had followed their legal instructions.
The letter from the acting foreman of the Fourth February-March 1984 Grand Jury is a remarkable document. Whoever he or she is, 6 I applaud the author's courage in writing and thoughtfulness in expressing his or her sentiments.
This letter undercuts the prosecutor's motion. If anything, it shows a complete and impartial investigation of all matters that came before the author of this letter. However, nothing in the papers on this motion establishes that this letter-writer deliberated on the presentation against Elvis R. and Jose C. I have given no effect to this letter in disposing of the People's application.
No question exists of the legal sufficiency of the evidence before the Grand Jury, if believed, to support an indictment for each charge submitted against Elvis and Jose. Indeed, if the evidence of the People's witnesses be rejected--as the grand jurors apparently did--sufficient legal evidence remained from the testimony of Elvis alone to indict him for reckless endangerment, first degree (Penal Law § 120.25) and criminal possession of a weapon, third degree (Penal Law § 265.02[4] ). He admitted shooting into the sidewalk with a crowd around and possessing a loaded operable This court is not saying that the grand jurors were mandated to indict and that, therefore, a resubmission is required for them to perform their duty. Of course, if they are following their oaths and the instructions on the law, when they have heard and believed legally sufficient evidence which, if unexplained and uncontradicted, would warrant conviction (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; People v. Ward, 37 A.D.2d 174, 176, 323 N.Y.S.2d 316; CPL 70.10; CPL 190.65), 7 they may vote an indictment and, as responsible citizens, ought to do so. Neither is this court deciding whether our grand juries possess or lack the power "to nullify the law by refusing to indict notwithstanding the presentation to it of evidence sufficient to sustain an indictment." (People v. Valles, 62 N.Y.2d 36, 43, 476 N.Y.S.2d 50, 464 N.E.2d 418 [Meyer, J., dissenting].) 8 Resolution of this issue does not really assist in determining whether to authorize resubmission on the ground that the first Grand Jury failed to give a complete and impartial investigation. Rather, the court presumes that the members of the Fourth February-March 1984 Grand Jury acted faithfully to their oaths. (Cf. 21 NY Jur., Evidence § 106.)
firearm at locations that were not his home or place of business.
The focus instead must be maintained on the only issue: Did the Grand Jury fail to give the case a complete and impartial investigation? The defendants point to the numerous and incisive questions posed throughout the presentation by members of this Grand Jury. 9 True, the grand jurors were active and analytical. Yet, even an intelligent Grand Jury is capable of performing an incomplete or partial investigation.
Crediting the Grand Jury, as the court does, with following the legal instructions given by the Assistant District Attorney and with acting according to the oath its members took, the court concludes that they must have given the case an incomplete or partial investigation. In reaching this conclusion, the court presumes that they drew every reasonable inference in favor of the defendants and rejected on credibility grounds the testimony that would tend to inculpate Elvis R. All other efforts to rationalize the result fail.
One rationalization that can be imagined is that the grand jurors pieced together a completely exculpatory version selecting snippets of testimony from one or another witness but believing no one, including Elvis R., entirely. This procedure is irrational and contrary to law. (See, e.g., People v. Scarborough, 49 N.Y.2d 364, 373, 426 N.Y.S.2d 224, 402 N.E.2d 1127; People Another possibility presented by the circumstances is that the Grand Jury accepted the instructions on justification but applied them erroneously to all the charges including criminal possession of a weapon, third degree. Whether or not justification would be a defense under the facts at bar to reckless endangerment, first degree (see People v. Zurita, 76 A.D.2d 871, 428 N.Y.S.2d 495; People v. May, 55 A.D.2d 739, 389 N.Y.S.2d 468; and compare People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795 with People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257, affg. 87 A.D.2d 488, 452 N.Y.S.2d 952 and People v. Albino, 104 A.D.2d 317, 478 N.Y.S.2d 908), turns perhaps on an assessment of the reasonableness of defendant's actions in using deadly physical force to defend himself. (Penal Law § 35.05; Penal Law § 35.15.) Justification is not, however, a defense to the possession count. (People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463.)
v. Salters, 75 A.D.2d 901, 428 N.Y.S.2d 293.) It also...To continue reading
Request your trial
-
U.S. v. Navarro-Vargas
...issue of grand jury nullification refused to decide whether the grand jury has the power to nullify the law. People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499, 502 (Sup.Ct.1985) ("Neither is this court deciding whether our grand juries possess or lack the power `to nullify the law by ref......
-
People v. Wesley
...of temporary and lawful possession is an exculpatory defense (see People v. Maize, NYLJ, May 31, 1994, at 36, col. 5; People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499). The defense is based on the recognition that possession of a weapon might arise "unavoidably from the performance of s......
-
People v. Fantucci
...or that there is a basis for believing that the Grand Jury acted or was acting in an irregular manner. (See, People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499.) Clearly, under this standard of review, the People have failed to convince this Court that granting the application for resubmi......
-
People v. Gega
...to a second grand jury charges that were dismissed not by the court, but by a prior grand jury. CPL § 190.75(3); People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499. This line of analysis is inapplicable since the charges at bar were not dismissed by the first grand jury. That body actuall......