People v. Salisbury
| Decision Date | 24 April 1992 |
| Citation | 182 A.D.2d 1105,582 N.Y.S.2d 887 |
| Parties | PEOPLE of the State of New York, Appellant, v. William SALISBURY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Larry M. Himelein, III, Litte Valley, for appellant.
Andrew Phelan, Ellicottville, for respondent.
Before CALLAHAN, J.P., and BOOMER, LAWTON, BOEHM and DAVIS, JJ.
County Court properly dismissed the indictment charging defendant with assault in the second degree. The prosecutor's examination of defendant before the Grand Jury regarding prior assaults and his gratuitous comment that his father had prosecuted defendant for one of them had no probative value and "only served impermissibly to foster speculation that defendant, as a person with a violent disposition, was likely to have provoked the assault" (People v. Mena, 70 A.D.2d 550, 416 N.Y.S.2d 611; see also, People v. Grafton, 115 A.D.2d 952, 497 N.Y.S.2d 528; cf., People v. Peek, 40 N.Y.2d 920, 389 N.Y.S.2d 573, 358 N.E.2d 266). The prosecutor's failure to give an appropriate limiting instruction that defendant's prior behavior was to be considered only on credibility compounded the prejudice (see, People v. Adams, 81 Misc.2d 528, 366 N.Y.S.2d 311; cf., People v. Thompson, 116 A.D.2d 377, 501 N.Y.S.2d 381). The court acted within its discretion in permitting the People to submit to another Grand Jury (CPL 210.20[4].
We disagree, however, with County Court's determination that the evidence before the Grand Jury was insufficient to sustain the indictment. The alleged victim's testimony regarding the incident, albeit disputed, was sufficient.
Order unanimously affirmed.
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