People v. Perez

• Decision Date: 13 November 1980
• Citation: 105 Misc.2d 845,433 N.Y.S.2d 541
• Parties: The PEOPLE of the State of New York, v. Jose PEREZ, Defendant.
• Court: New York Supreme Court

Page 541

433 N.Y.S.2d 541

105 Misc.2d 845

The PEOPLE of the State of New York, v. Jose PEREZ, Defendant.

Supreme Court of New York, Bronx County, Part 14.

Nov. 13, 1980.

Barry Scheck, New York City, for defendant.

Mario Merola, Dist. Atty., by Martin L. Fisher, Asst. Dist. Atty., of counsel, for the People.

JOSEPH COHEN, Justice.

Upon the foregoing papers this motion will be considered by this Court as a motion to reargue this Court's opinion of May 5, 1980 and upon reconsideration the original opinion is adhered to and the motion denied.

In reconsidering, the Court notes the following:

The main thrust of the defendant's argument has to do with the People's Brady obligation vis-a-vis the Grand Jury.

Now what is the People's "Brady" obligation in making a presentment to the Grand Jury?

In making a presentment to the Grand Jury, the prosecution has wide discretion. (U. S. v. Kaplan, 3 Cir., 554 F.2d 958). This discretion is not unbounded though, for instance the prosecutor has a duty not to let a case go to trial when he knows the indictment is founded on perjury (U. S. v. Basurto, 9 Cir., 497 F.2d 781), so too if he is in possession of evidence which clearly negates the defendant's guilt, he must submit such evidence to the Grand Jury (U. S. v. Narciso, D.C., 446 F.Supp. 252) (People v. Filis, 87 Misc.2d 1067, 386 N.Y.S.2d 988).

The purposes of a Grand Jury proceeding are twofold. It seeks to determine if a crime has been committed and who committed that crime. (People v. Filis, supra). The District Attorney, in his discretion as the legal advisor to the Grand Jury calls witnesses, presents evidence and instructs on the law as to the significance of that evidence and as to how it may be legally interpreted. A Grand Jury Proceeding however, is not a dress rehearsal for Trial. (People v. Filis, supra). There is no right of Cross Examination or introduction of evidence to rebut a prosecutor's presentation (U. S. v. Y. Hata & Co., Ltd., 9 Cir., 535 F.2d 508; (cert. den. 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92)). There is no requirement that so called exculpatory evidence be presented to the Grand Jury (People v. Filis, supra), in fact in U. S. v. Y. Hata & Co., Ltd., (supra) the 9th Circuit specifically rejected "... appellant's contention that the prosecution must present the Grand Jury with evidence it may have which would tend to negate guilt".

As pointed out in People v. Mitchell, 40 A.D.2d 117, 338 N.Y.S.2d 313 Brady v. Maryland, (supra) is not a case that dealt with Grand Jury evidence but trial evidence; and so long as the so called exculpatory evidence is not suppressed by the prosecutor from introduction before the Petit Jury, Brady has been satisfied. This has been stated by Chief Justice Burger, then Judge, (see U. S. v. Chanen, 9 Cir., 549 F.2d 1306, cert. den. 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83; citing Coppedge v. U. S., 114 U.S.App.D.C. 79, 311 F.2d 128, cert. den. 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701).

"Public Officers (i. e., Prosecutors) are charged with a high duty to screen out unreliable witnesses but the critical and final place to detect perjury, is on trial, when the witness must face the accused before the world and expose himself to the rigors of cross examination and other hazards, including...