People v. Serkiz

• Decision Date: 24 February 2005
• Docket Number: 15681
• Citation: 17 A.D.3d 28,2005 NY Slip Op 01393,790 N.Y.S.2d 296
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WILLIAM T. SERKIZ, Respondent.

17 A.D.3d 28

790 N.Y.S.2d 296

2005 NY Slip Op 01393

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v.WILLIAM T. SERKIZ, Respondent.

15681

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 24, 2005.

APPEAL from an order of the Broome County Court(Smith, J.), entered August 4, 2003.The order granted defendant's motion to dismiss the indictment.

Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), for appellant.

William C. Pelella, Binghamton, for respondent.

OPINION OF THE COURT

MUGGLIN, J.

Defendant, a 25-year employee in the Department of Public Works of the Town of Union, Broome County, had, in accordance with the collective bargaining agreement (hereinafter CBA) between his union and the Town, accumulated in excess of 200 days of compensable sick time.As he was contemplating retirement in the not too distant future and, as the CBA provided that he could be compensated on retirement for no more than 135 days of sick leave, he determined, as he claimed others had previously done, to "burn" excess sick days by calling in sick, although he was not.On 32 such days, between April 26, 2000 and December 14, 2000, he actually was gainfully employed by the Town of Chenango, Broome County and, thus, received wages from both municipalities on those days.

Defendant's actions had two consequences.First, the Town of Union filed a grievance and, after a hearing, an arbitrator imposed the penalty of dismissal from employment against defendant.Second, defendant was indicted by a Broome County grand jury for grand larceny in the third degree in violation of Penal Law § 155.35, for a theft of United States currency in an amount exceeding $3,000.Defendant moved to dismiss the indictment on grounds that the grand jury proceeding was defective and the evidence was legally insufficient.Defendant later supplemented his motion by asserting that the indictment should be dismissed in the interest of justice.County Court dismissed the indictment on the grounds that the grand jury proceeding was impaired and in the interest of justice and the People appeal.

Initially, we note that County Court did not address the issue of the legal sufficiency of the evidence upon which the indictment was founded.After reviewing the evidence presented to the grand jury in the light most favorable to the prosecution, we conclude that the presentation was legally sufficient since the evidence, if unexplained and uncontradicted, would warrant conviction (seeCPL 70.10 [1];People v Swamp,84 NY2d 725, 730[1995]).

A grand jury proceeding that yields an indictment is defective when the proceeding fails to conform to the requirements of law (see CPL art 190) to such a degree that the integrity thereof is impaired and prejudice to the defendant may result (seeCPL 210.35 [5];People v Spencer,289 AD2d 877, 877-878[2001], lv denied98 NY2d 655[2002]).This test is stringent but does not require that actual prejudice occur to warrant dismissal (seePeople v Huston,88 NY2d 400, 409[1996]).Thus, because the standard is so high and dismissal such a drastic remedy, dismissal is limited to "those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury"(id. at 409).

County Court concluded that the integrity of the proceeding was impaired to the required degree because the prosecutor(1) failed to present evidence in mitigation or defense of defendant's alleged conduct, (2) improperly impeded the grand jury's investigatory function, and (3) failed to submit competent evidence concerning defendant's knowledge of his employer's policies and the CBA's terms.We disagree.A Deputy Commissioner of Public Works for the Town of Union testified before the grand jury that the Town had no policy or understanding authorizing an employee to use sick days in this manner.Defendant's immediate supervisor testified in the arbitration proceeding that an employee could take sick days accumulated in excess of the maximum allowable, even if not sick, pursuant to an unwritten policy of long duration.County Court concluded that the grand jury proceeding was defective since the District Attorney made no inquiry of this witness concerning the unwritten policy.First, County Court's finding in this regard overlooks the fact that when this witness was recalled before the grand jury, he clearly testified that he never informed defendant that it was permissible to use up his excess sick time and that he never discussed with defendant a scheme of calling in sick and going to work for another municipality.Second, it is well settled that district attorneys have largely unfettered...