People v. Loomis

• Decision Date: 18 February 2010
• Citation: 70 A.D.3d 1199,2010 N.Y. Slip Op. 01390,896 N.Y.S.2d 208
• Parties: The PEOPLE of the State of New York, Appellant,v.Naomi LOOMIS, Robert “Stan” Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino, Respondents.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 1199
896 N.Y.S.2d 208
2010 N.Y. Slip Op. 01390

The PEOPLE of the State of New York, Appellant,
v.
Naomi LOOMIS, Robert “Stan” Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino, Respondents.

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

Feb. 18, 2010.

[896 N.Y.S.2d 209]

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for appellant.Dreyer Boyajian, L.L.P., Albany (John B. Casey of counsel), for Naomi Loomis and another, respondents.Law Office of E. Stewart Jones, Troy (E. Stewart Jones of counsel), for Kenneth Michael Loomis and others, respondents.Before: PETERS, J.P., LAHTINEN, KAVANAGH and STEIN, JJ.STEIN, J.

[70 A.D.3d 1199] Appeal from an order of the County Court of Albany County (Herrick, J.), entered September 15, 2008, which granted defendants' motions to dismiss the indictment.

The People alleged that defendants were involved in unlawfully selling steroids and related drugs via the Internet to customers in, among other places, the City of Albany. In May 2008, after a lengthy course of proceedings—including three previous indictments ¹ before two different grand juries—a 33–count indictment (hereinafter the fourth indictment) was returned. County Court previously dismissed 11 counts of the third indictment, but granted the People leave to re-present. In [70 A.D.3d 1200] May 2008, the People reconvened the grand jury, which had returned the third indictment in October 2007 and presented new evidence and a new indictment. Following the grand jury's return of the fourth indictment, County Court again entertained motions to dismiss and, after having released the grand jury minutes, dismissed the fourth indictment in its entirety, without granting leave to re-present. The People now appeal.

A grand jury proceeding is defective when it “fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5] ). Although there is no requirement that actual prejudice be demonstrated, “[d]ismissal of indictments under CPL 210.35(5) should ... 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. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). “[T]he question whether a particular presentment was so improper as to impair the integrity of the [g]rand [j]ury ... proceeding and to create the potential for prejudice [is] a question of law” ( People v. Adessa, 89 N.Y.2d 677, 684–685, 657 N.Y.S.2d 863, 680 N.E.2d 134 [1997] ).

Under the particular facts and circumstances surrounding these complicated grand jury proceedings, we agree with County Court's finding that the integrity thereof was impaired ( see id. at 685, 657 N.Y.S.2d 863, 680 N.E.2d 134). Here, the grand jury was presented with evidence in October 2007 and given detailed instructions with regard to the law and the indictment being presented at that time. In May 2008—approximately seven months later—the same grand jury was presented with a completely new indictment that did not include any of the 11 counts previously

[896 N.Y.S.2d 210]

dismissed, but did include numerous new counts...