People v. Pelchat

Citation476 N.Y.S.2d 79,464 N.E.2d 447,62 N.Y.2d 97
Parties, 464 N.E.2d 447 The PEOPLE of the State of New York, Respondent, v. David PELCHAT, Appellant.
Decision Date15 May 1984
CourtNew York Court of Appeals
Michael Young and David Breitbart, New York City, for appellant
OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted of criminal possession of marihuana in the first degree after pleading guilty to the indictment. He now seeks reversal of the judgment contending that the indictment was fatally defective because the only evidence before the Grand Jury connecting him with the crime was the testimony of a police officer who subsequently told the prosecutor that he was unable to identify defendant as a participant in the crime and that he had misunderstood the question which caused him to do so. Defendant contends that because the prosecutor knew of this mistake before defendant's plea, he should have resubmitted the matter and corrected the proceedings and that his failure to do so mandates that the conviction be reversed and the indictment dismissed. We agree. The Grand Jury could indict only upon legally sufficient evidence and when the prosecutor learned of the error while the proceedings were still pending, before defendant's plea, he was obliged to correct the error by obtaining a new accusatory instrument.

The charge arose out of an intensive drug investigation which resulted in the arrest and indictment of 33 defendants for criminal possession of marihuana. The crimes were committed during the early morning hours of September 3, 1981, when a vessel known as the "Miss Marge" sailed into Gardiner's Bay, Long Island, and dropped anchor off shore from the premises at 51 Milina Drive, Easthampton. Over the next several hours, some 72 bales of marihuana were removed from "Miss Marge", transported to shore by smaller boats, and then loaded onto a truck parked on the Milina Drive premises. These activities, both on and off shore, were observed by police officers from 2:00 a.m. until approximately 5:30 a.m. through a night scope. After the unloading was completed, at approximately 6:00 a.m., the officers arrested everyone in the house at 51 Milina Drive. Twenty-one persons were inside, including defendant. Other defendants were arrested subsequently in the boats. It was later to develop that none of the officers were able to identify defendant as having participated in any part of the unloading operation or any other criminal activity that evening. He was arrested because he was in the house with other defendants.

The case was handled by two Assistant District Attorneys. The ADA in charge of the prosecution was on vacation when the case went before the Grand Jury on September 9, 1981, and an associate who had no prior connection with it made the presentment. The only evidence relating to defendant appears during the following testimony by Officer Tuthill:

Did there come a time when a number of individuals were arrested within that house?

A. Yes, there were.

Q. Approximately, how many, do you know?

A. I'd say approximately, twenty-one.

Q. Those twenty-one individuals, were they under your observations with respect to off-loading the Unapplied Times, off-loading the four Zodiac rafts and transporting the bales of what you suspected to be marijuana into the truck located on the east side of 51 Milina Drive?

A. Yes, they were.

Q. Do you know the names of those twenty-one individuals you made those observations of?

A. Yes.

Q. Would you please indicate to the Grand Jury the names of those twenty-one individuals?

A. * * * P-E-L-C-H-A-N-T, David R. [sic ].

In late October or early November, 1981, before defendant's plea, the prosecutor in charge of the case was told by Officer Tuthill that he had not observed defendant engage in any criminal activity and that he had misunderstood the questions asked by the prosecutor's associate before the Grand Jury. The prosecutor testified that from that moment on he knew that "the only testimony I had about Pelchat was that he was carrying a football jersey, dungarees and sneakers; or he was fully dressed with a football jersey on, in the ground floor of the house Nevertheless, the prosecutor failed to disclose Tuthill's admissions or make any effort to correct the Grand Jury proceedings, leaving both the Grand Jury and the court with the false impression that Officer Tuthill had actually observed defendant engage in some criminal activity when in fact he had never made any such observation and had not intended to testify that he had. Defendant subsequently pleaded guilty to the indictment immediately before trial. Before he was sentenced Officer Tuthill appeared as a witness at the trial of the remaining defendants. After first testifying that he "thought" he had seen defendant carrying a bale of marihuana but wasn't sure, he then admitted that neither he nor his partner, Officer Lia, had observed defendant participating in any criminal activity. He testified that he had advised the Assistant District Attorney of this and that he had explained to him that he understood his associate's questions before the Grand Jury as merely a request for a list of the persons arrested that night and not a request for the names of the individuals he had actually observed engaging in criminal activity:

How about a Mr. Pelchat? Did you have a discussion on the front lawn with regard to a Mr. Pelchat?

A. Yes.

Q. And was that with regard to what you had observed Mr. Pelchat do that night?

A. I thought I saw Mr. Pelchat carrying a bale of marijuana but I wasn't quite sure it was him. And Lia told me he didn't see him doing anything. And I wasn't absolutely positive that it was Pelchat.

Q. You weren't positive?

A. I wasn't absolutely positive it was Pelchat.

Q. And did Lia dissuade you from the fact that Pelchat had done anything?

A. No. But I'm not going to implicate the man if I partially saw him. And Lia didn't see him at all.

Q. You wouldn't do that?

A. No. I wouldn't.

Q. Did you testify under oath in a grand jury, sir?

A. Yes, I did.

Q. Were you asked these questions and did you give these answers, sir? Under oath in the grand jury. Which led to these proceedings.

[reads Grand Jury testimony quoted above]

A. I believe so.

* * *

Q. You just told this jury that you didn't see Gregorek do anything, did you?

A. I was giving the men a list of the names of the individuals that were arrested from 51 Milina Drive.

Q. You were giving the man a list of names?

A. Yes.

Q. Did you just tell us a couple of moments ago that you understood the question?

A. I do now.

Q. Did you understand the implications of your testimony in the grand jury?

A. I thought the ADA was asking for the subjects that were arrested from 51 Milina Drive. And that's what I gave him. I wasn't trying to mislead anyone.

Q. Did you also indicate, sir, that you observed Pelchat, David R.?

A. I don't know, did I?

* * *

Q. And were you asked, sir, by Mr. Castellano where in fact individuals who you were about to name were observed by you off-loading zodiacs, carrying bales and moving marijuana on the morning of September 3rd?

A. The first question that Mr. Castellano asked me was to name the 21--to me, I thought he said name the 21 people that are arrested from the house. And that's what I did.

* * *

Q. At any time did you tell the Assistant District Attorney Pelchat did nothing? Did you tell him that?

A. Yes, I did.

* * *

Q. Would it be fair to say, sir, that neither you nor Lia which you deduced from talking to him, had seen any of those four men do anything?

A. Like I said, I hadn't seen Pelchat, Gregorek or Segal do anything.

Upon learning of this testimony, prior to sentencing, defendant moved to withdraw his guilty plea and to dismiss the indictment. On the return date, March 16, 1982, the trial court ruled, as it had on defendant's preplea motion to dismiss, that the evidence before the Grand Jury was sufficient. It also ruled that by pleading guilty defendant had waived his right to challenge the indictment or to challenge the prosecutor's failure to disclose the Tuthill statements as Brady material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). The court ordered a hearing, however, to determine whether the prosecutor had known prior to the Grand Jury presentation of Tuthill's inability to connect defendant with the crime.

After the hearing, the trial court concluded that "the District Attorney * * * did not seek to indict the defendant by the knowing use of perjurious or mistaken testimony. He was not aware of the limited notice of the Police Officer's observation as to this defendant until after the indictment had been handed up." The Appellate Division, 94 A.D.2d 805, 463 N.Y.S.2d 55, affirmed, holding that defendant had waived any objections to the indictment and that the information was not Brady material.

We accept the finding of the courts below that the record does not support any claim that the prosecutor knew of the deficiency in the evidence before presenting the case. Indeed, it appears that the presenting attorney knew very little about the case. He had not seen defendant's arrest report (which apparently stated only that defendant was arrested in the house) and he had a relatively brief conversation with the police officers to obtain an "overview" of the crime before they testified about these several arrests. He later testified at a posttrial hearing:

Well, in the grand jury, in your mind, Tuthill told you he saw Pelchat doing something inculpatory; is that right?

A. In the grand jury, in my mind, he indicated to me that Mr. Pelchat, along with the other individuals, was participating in some aspect of the off-loading.

Q. What aspect did he indicate to you Pelchat was involved in?

A. He did not indicate that to me. Nor did I inquire, sir. The court made no findings...

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