People v. Kidwell

• Decision Date: 20 October 2011
• Citation: 88 A.D.3d 1060,931 N.Y.S.2d 148,2011 N.Y. Slip Op. 07307
• Parties: The PEOPLE of the State of New York, Respondent,v.Christopher M. KIDWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1060
931 N.Y.S.2d 148
2011 N.Y. Slip Op. 07307

The PEOPLE of the State of New York, Respondent,
v.
Christopher M. KIDWELL, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 20, 2011.

[931 N.Y.S.2d 149]

Battisti, Gartenman & Thayne, Binghamton (Timothy E. Thayne of counsel), for appellant.Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.PETERS, J.P.

[88 A.D.3d 1061] Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered January 4, 2008, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree and endangering the welfare of a child.

In November 2006, the then six-year-old victim reported to her mother that defendant had touched her “private parts” while she was staying at the home of the mother's friend. The mother contacted the police and, following an investigation, defendant was arrested and charged with sexual abuse in the first degree and endangering the welfare of a child. Following a jury trial, defendant was convicted of both charges and sentenced as a second felony offender to an aggregate term of seven years in prison, to be followed by five years of postrelease supervision. He now appeals.

Defendant asserts that County Court erred in failing to dismiss the indictment on the ground that the grand jury heard allegedly prejudicial testimony concerning a prior uncharged crime. During the victim's videotaped testimony before the grand jury, she stated that she slept over at the home of her mother's friend after having Thanksgiving dinner there, and that her brother and defendant had also stayed there that night. When questioned as to whether her sister also slept over, the victim responded, “She didn't. It happened to [her] when she was up there, too.” The victim's testimony in this regard neither indicated what had happened to her sister, nor who else had been involved in the incident. While defendant argues that the jury could infer from this statement that the victim's sister was subjected to a sexual assault by defendant, we find that any error in the presentation of this testimony did not impair the integrity of the grand jury proceeding such that dismissal of the indictment was warranted ( see CPL 210.35[5] ).

“Dismissal is a drastic, exceptional remedy and ‘should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” ( People v. Moffitt, 20 A.D.3d 687, 688, 798 N.Y.S.2d 556 [2005], lv. denied

[931 N.Y.S.2d 150]

5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005], quoting People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996]; see People v. Tatro, 53 A.D.3d 781, 783, 862 N.Y.S.2d 154 [2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ). “[N]ot every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” ( People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362; accord People v. Butcher, 11 A.D.3d 956, 958, 782 N.Y.S.2d 339 [2004], lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671...