People v. Perkins
| Decision Date | 21 August 2017 |
| Citation | 58 Misc.3d 171,64 N.Y.S.3d 454 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Joshua PERKINS, Defendant. |
| Court | New York County Court |
Eric Schneiderman, Esq., New York State Attorney General, by James Mindell, Esq., Assistant Attorney General, Syracuse, For the People.
Matthew Lembke, Esq., Cerulli Massare & Lembke, Rochester, For the Defendant.
The defendant, Joshua Perkins, is charged by way of the above-referenced indictment with two counts of criminal sale of a firearm in the first and second degree respectively ( Penal Law [PL] §§ 265.13[2] ; 265.12 [2] ) and one count of second-degree forgery (PL § 170.10[3] ), all in conjunction with events occurring at or near Jackson's Guns & Ammo on East Henrietta Road in the County of Monroe on or about and in between January 24, 2013 and July 10, 2014. He is further charged with criminal possession of a controlled substance in the seventh degree (PL § 220.03), criminal possession of a weapon in the third degree (PL § 265.02[7] ), 11 counts of criminal possession of a weapon in the third degree (PL § 265.02[8] ), and possession of untaxed tobacco products ( Tax Law § 1814[a][I] ), all stemming from a search of defendant's residence at or near Auramar Drive in the City of Rochester occurring on or about June 15, 2016.
Defendant has requested that the Court inspect the grand jury minutes, and has also moved on various grounds to dismiss or reduce the charges in the indictment. He has further requested that the Court release the grand jury minutes for inspection.
The law provides that a grand jury may issue an indictment only where there is legally sufficient evidence before it that provides reasonable cause to believe that a person has committed an offense ( People v. Huston, 88 N.Y.2d 400, 407, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). To dismiss or reduce an indictment based on insufficient evidence, a reviewing court must consider whether the evidence produced at the grand jury, viewed in the light most favorable to the People, would, if unexplained and uncontradicted, warrant conviction by a petit jury ( People v. Grant, 17 N.Y.3d 613, 616, 935 N.Y.S.2d 542, 959 N.E.2d 479 [2011] ). "Legally sufficient evidence" is defined by statute as "competent evidence, which, if accepted as true, would establish every element of an offense charged" ( Criminal Procedure Law [CPL] § 70.10[1] ). "In the context of a grand jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" ( People v. Bello, 92 N.Y.2d 523, 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209 [1998] ). "Thus, a reviewing court must determine whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the grand jury could rationally have drawn the guilty inference" ( Grant, 17 N.Y.3d at 616, 935 N.Y.S.2d 542, 959 N.E.2d 479 ).
The law also provides that a grand jury proceeding is defective when the integrity of the proceeding is impaired, and prejudice to the defendant may result. A defective grand jury proceeding warrants dismissal of an indictment. ( Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362.) Although failure to furnish adequate or complete instructions is not one of the grounds listed as authorizing dismissal of the indictment (see CPL § 210.35[5] ),1 it may, in a given case, render the grand jury proceedings defective, thus mandating dismissal of the indictment ( People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418 [1984] [citations omitted] ). It is well settled that a grand jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law ( People v. Darby, 75 N.Y.2d 449, 554 N.Y.S.2d 426, 553 N.E.2d 974 [1990] [citations omitted] ). As the grand jury is not charged with the ultimate responsibility of determining the guilt or innocence, it is "unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court's instructions to a petit jury" ( People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980] ). Rather, it is "sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" ( Calbud, Inc., 49 N.Y.2d at 394–395, 426 N.Y.S.2d 238, 402 N.E.2d 1140 ). The test for evaluating the adequacy of instructions is "whether [they] were so deficient as to impair the integrity of the Grand Jury's deliberations" ( People v. Cannon, 210 A.D.2d 764, 620 N.Y.S.2d 539 [3d Dept.1994] [citations omitted] ).
To meet the statutory criteria of an assault weapon, a semi-automatic rifle (rifle) must, at a minimum, have the "ability to accept a detachable magazine " (PL § 265.00[22][a] [emphasis added] ); however, the Legislature has not further defined this term. Defendant's paramount contention concerns the absence of a definition for "detachable magazine" as it applies to 9 of the 18 rifles at issue in this case that he alleges have been modified by an MR2 Kit (MR2).2 In sum, defendant asserts that without statutory clarification, the ambiguity permits an interpretation that the installation of an MR2 converts a detachable magazine to a fixed magazine, thereby disqualifying MR2–modified rifles from classification as assault weapons.3 Accordingly, defendant seeks a decrease in the total number of rifles which currently constitute the bases of counts 6, 7 and 27, which would result in dismissal or reduction thereof.
In support of his position, defendant implores the Court to seek guidance from the Legislatures of other states that have further defined "detachable magazine" as an ammunition feeding device that cannot be removed without disassembly of the weapon (see Conn. Gen. Stat. Ann. § 53–202a [2][F] [4];4 Cal. Penal Code § 30515 [b]; Md. Code Crim. Law § 4–301 [f] ). He further relies upon a firearms examiner's report—not presented to the grand jury—finding an MR2–modified Bushmaster rifle to have a fixed magazine as authoritative in establishing that such a modification transforms an assault weapon into a lawful rifle. The Court disagrees. Defendant's contentions fall outside the scope of the Court's authority to review grand jury proceedings as he requests that the Court consider evidence not presented therein (see CPL §§ 210.20 ; 210. 25; 210.30; 210.35; see also People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986] [] [emphasis added] ).5
Here, as part of their grand jury presentation, the People called a firearms examiner who testified—after establishing his credentials—that he inspected all of the weapons at issue in this case, including the Bushmaster, and concluded that each was capable of accepting a detachable magazine (see PL § 265.00[22] ). Significantly, there was no testimony whatsoever as to the modification of any rifle by means of an MR2.
Even if the Court were to consider the firearm examiner's report relied upon by defendant and conclude that the Bushmaster was not an assault rifle, thereby excluding it from consideration in count 6, the integrity of the indictment would not be impaired as the remaining evidence presented to the grand jury still satisfies the required minimum number of unlawful transactions to constitute the charge.6 Additionally, defendant's tenuous extrapolation of the conclusion from the firearm examiner's report that the affixing of an MR2 converts a detachable magazine to a fixed magazine is unsupported by the document itself; the report merely indicates that the magazine is fixed but does not set forth a basis for that conclusion. Rather, it is defendant's unsupported and self-interested assertion that the Bushmaster was modified by an MR2.
To the extent any inconsistencies exist between the firearm examiner's report and grand jury testimony, the Court concludes it would not have a material influence upon the grand jury, as credibility factors should be more appropriately reserved for presentation to the petit jury (see People v. Suarez, 122 A.D.2d 861, 505 N.Y.S.2d 728 [2d Dept.1986], appeal denied 68 N.Y.2d 817, 507 N.Y.S.2d 1036, 499 N.E.2d 885 [1986] ; see generally People v. Davis, 48 A.D.3d 1255, 850 N.Y.S.2d 821 [4th Dept.2008], lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008], denying error coram nobis 64 A.D.3d 1200, 881 N.Y.S.2d 360 [2009] ).
Accordingly, based upon an examination of the grand jury minutes, the Court concludes that the offenses charged in the indictment are supported by legally sufficient evidence, and the evidence provides reasonable cause to believe that defendant committed the offenses charged. Furthermore, the proceedings were not defective. Viewing the People's instructions in totality, this Court finds no deficiency that would have impaired the integrity of the grand jury's deliberations. Contrary to defendant's contention, that the People did not provide a specific definition for "detachable magazine" to the grand jury did not impair the integrity of the proceeding (see generally Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 ; People v. Douglas, 288 A.D.2d 859, 732 N.Y.S.2d 781 [4th Dept.2001], lv. denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ; People v. Scott, 175 A.D.2d 625, 572 N.Y.S.2d 562 [4th Dept.1991], lv. denied 78 N.Y.2d 1130, 578 N.Y.S.2d 888, 586 N.E.2d 71 [1991] ).
Defendant also requests that the Court release a portion of the minutes of the grand jury proceeding as specified above. Grand Jury...
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