People v. Richard

• Decision Date: 04 October 1990
• Citation: 561 N.Y.S.2d 351,148 Misc.2d 573
• Parties: The PEOPLE of the State of New York v. John Willis RICHARD, Defendant.
• Court: New York County Court

Page 351

561 N.Y.S.2d 351

148 Misc.2d 573

The PEOPLE of the State of New York v. John Willis RICHARD, Defendant.

County Court, Albany County.

Oct. 4, 1990.

Sol Greenberg, Dist. Atty. of the County of Albany by Daniel S. Dwyer, Chief Asst. Dist. Atty., Albany, for the People.

Terence L. Kindlon, Albany, for defendant.

JOSEPH J. TRAFICANTI, JR., Judge.

Defendant is charged by Indictment No. 27-2592 with two counts of Perjury in the First Degree, in violation of Penal Law, § 210.15. In Defendant's Omnibus Motion, he sought review of the Grand Jury minutes and dismissal of the indictment on the grounds that the Grand Jury proceeding was defective. Upon review of the Grand Jury minutes, this Court directed the District Attorney to provide the Defendant's attorney with a copy of the Grand Jury minutes for review and further briefing by both parties of any issues they deemed relevant. Defendant now moves for a dismissal of the indictment on the grounds that the Grand Jury improperly received legal advice from a witness, in violation of CPL 190.25(6), and Defendant was unduly prejudiced during the Grand Jury proceedings by the District Attorney's references to a prior perjury indictment.

The Defendant is charged with perjury under the inconsistent statement theory as set forth in Penal Law, § 210.20. The indictment charges that Defendant made inconsistent statements, while under oath, during the course of two separate court proceedings. The indictment further charges these statements were material to the proceedings in which they were made. Under Penal Law, § 210.20, such inconsistency could lead a jury to the conclusion that one or both of the statements are false. A prior perjury indictment against Defendant arising from the same statements was dismissed as defective pursuant to CPL 210.20(1)(b).

In this Grand Jury proceeding, the District Attorney presented a law professor from a local law school as an expert witness on the issue of materiality. The professor testified that the statements made by the defendant at the trial "... went to ... prove his basic contention that he did not do the crime, and also went to affect his credibility, both of which the Court of Appeals has indicated go to the concept of materiality". The professor also testified as to the legal relevancy of the plea allocution. He further opined that the statements made by Defendant were material to the proceedings in which they were given.

During the questioning of the professor, the District Attorney referred the witness to the alleged perjurious statements by presenting him with a copy of a "proposed" indictment against Defendant. The professor then remarked that the statements contained in the "proposed" indictment were "... almost identical to the ones in the earlier indictment".

The District Attorney gave the Grand Jury a limiting instruction to give whatever weight, if any, they chose to the professor's opinion on the issue of materiality since they, as the Grand Jury, were the ultimate fact-finders. Regarding the references to the prior perjury indictment, he gave the Grand Jury a curative instruction to disregard those references and stated the references were necessary "... to place the professor's testimony in context in the sense of referring him to the content of the current [emphasis supplied] indictment".

Defendant asserts that the professor's testimony in the Grand Jury was legal advice and violated CPL 190.25(6). Further, defendant contends that the reference to the prior perjury indictment was highly prejudicial and unjustified.

EXPERT TESTIMONY ON THE ISSUE OF MATERIALITY

As an element of the crime of Perjury in the First Degree, materiality is a question of fact for the jury to decide. People v. Davis, 53 N.Y.2d 164, 170, 440 N.Y.S.2d 864, 423 N.E.2d 341. A statement which affects credibility is, as a matter of law, material for purposes of a perjury charge. People v. Davis, supra at 171, 440 N.Y.S.2d 864, 423 N.E.2d 341. The Appellate Division, Third Department, has held that in deciding this question of fact (i.e. materiality), a trial jury may receive testimony from an expert witness on whether a statement was material to a court proceeding. People v. Fish, 81 A.D.2d 975, 439 N.Y.S.2d 775.

A Grand Jury differs in many regards from a trial jury. The relevant difference in this case is that there is a statutory mandate set forth in CPL § 190.25(6) that only the District Attorney and the Court are to give legal advice to the Grand Jury. Cf. Matter of Cooligan v. Celli, 112 A.D.2d 789, 492 N.Y.S.2d 287. Accordingly, where a witness renders legal advice to a Grand Jury, the indictment should be dismissed. See, e.g., People v. Darcy, 113 Misc.2d 580, 449 N.Y.S.2d 626. The statute is clear that the legal advisor to the Grand Jury is the District Attorney or the Court. This seems especially clear where the opinion to be given to the Grand Jury is the status of New York State Law as articulated by the Court of Appeals, i.e. credibility is material.

The District Attorney argues that if there was any impropriety in having a law professor instruct the Grand Jury on a legal issue, it is harmless in that the District Attorney himself gave similar instructions to the Grand Jury and a mere duplication of legal instruction does not taint the proceeding. However, more than this occurred here. The professor not only instructed the Grand Jury on the issue of materiality but also advised the Grand Jury that in his opinion the statements were material to the proceedings in which they were made. Likewise, he testified that certain statements made by the defendant went to affect his credibility. These opinions on credibility and materiality communicated to the Grand Jury the professor's interpretation of the facts. In so doing he went beyond the role of law instructor and invaded the fact-finding province...