People v. Singh

• Decision Date: 24 July 2012
• Citation: 2012 N.Y. Slip Op. 22203,950 N.Y.S.2d 851,36 Misc.3d 910
• Parties: The PEOPLE of the State of New York v. Gurmeet SINGH, Defendant.
• Court: New York Supreme Court

36 Misc.3d 910

950 N.Y.S.2d 851

2012 N.Y. Slip Op. 22203

The PEOPLE of the State of New York

v.Gurmeet SINGH, Defendant.

Supreme Court, Kings County, New York.

July 24, 2012.

Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Rachel Schmidt, for the People of the State of New York.

Jake Lasala, Esq., for Defendant, Gurmeet Singh.

MIRIAM CYRULNIK, J.

Defendant stands indicted for Predatory Sexual Assault, Rape in the First Degree, and other charges. By omnibus motion, defendant moves for a variety of relief. Defendant's requests are decided as follows:

Grand Jury Minutes

Defendant's motion to inspect the Grand Jury minutes is granted. Upon an examination of the minutes of the Grand Jury proceedings, the court finds that the evidence before the Grand Jury was legally sufficient to establish the offenses charged and that the defendant committed said offenses ( seeCPL §§ 190.65, [36 Misc.3d 912]210.20, 210.30; People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984];People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980];People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774 [1995] ). Additionally, the court finds that the instructions on the law given to the Grand Jury were adequate and legally sufficient ( see People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980], supra). Further, no procedural flaws or errors support dismissal or reduction of any count or of the indictment.

To the extent that defendant requests that the Grand Jury minutes be disclosed to him for the purpose of determining whether there was sufficient evidence to support the charges contained in the indictment, the court notes that release of those minutes is authorized only when the court finds that disclosure is necessary to assist it in making a determination (CPL § 210.30[3] ). That assistance is not required and defendant's application to examine the Grand Jury minutes is denied ( see alsoCPL § 190.25[4]; People v. Robinson, 98 N.Y.2d 755, 751 N.Y.S.2d 843, 781 N.E.2d 908 [2002] ).

Predatory Sexual Assault

Defendant moves, specifically, to dismiss count one of the indictment, Predatory Sexual Assault, advancing several arguments:

1. Legislative Intent

Defendant argues that P.L. § 130.95, Predatory Sexual Assault, does not apply to the case at bar because the Legislature intended it to apply only to “egregious acts of sexual assault” and the instant matter does not satisfy this requirement (Defendant's Affirmation, p. 14). Repeating the traditional definition of “egregious” conduct as that which “shocks the conscience” ( id., p. 14–15 [citations omitted] ), he suggests that the conduct alleged “is not of such a heinous character” as to warrant prosecution under this section ( id.) ¹ He argues, instead, that since the alleged offense is properly encompassed by P.L. § 130.35(1), Rape in the First Degree, Predatory Sexual Assault must be dismissed.

Penal Law (PL) § 130.35(1), Rape in the First Degree, as charged in the instant indictment, reads as follows:

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

[36 Misc.3d 913]1. By forcible compulsion[.]

Penal Law (PL) § 130.95(1)(b), Predatory Sexual Assault, as charged in the instant indictment, reads as follows:

A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:

1. In the course of the commission of the crime or the immediate flight therefrom, he or she:

(b) Uses or threatens the immediate use of a dangerous instrument[.]

It is well-settled that “the common law policy of strictly construing the penal code no longer obtains in this State. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted according to the fair import of their terms to promote justice and effect the object of the law'(Penal Law, [sic] § 5.00)” ( People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515 [1981];see also People v. Keyes, 75 N.Y.2d 343, 553 N.Y.S.2d 81, 552 N.E.2d 617 [1990];People v. Hedgeman, 70 N.Y.2d 533, 523 N.Y.S.2d 46, 517 N.E.2d 858 [1987];People v. Teicher, 52 N.Y.2d 638, 439 N.Y.S.2d 846, 422 N.E.2d 506 [1981] ).

In examining statutory construction, “the court's primary obligation is to determine and give effect to the Legislature's intent” ( People v. Dewall, 15 A.D.3d 498, 500, 790 N.Y.S.2d 182 [2d Dept. 2005], lv. denied5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668 [2005] ). Penal Law statutes are “generally to be construed so as to give effect to their most natural and obvious meaning” ( People v. Hedgeman, 70 N.Y.2d 533, 537, 523 N.Y.S.2d 46, 517 N.E.2d 858, supra ). “Penal responsibility cannot be extended beyond the fair scope of the statutory mandate” ( People v. Sansanese, 17 N.Y.2d 302, 306, 270 N.Y.S.2d 607, 217 N.E.2d 660 [1966];see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736 [1960] ). However, courts are authorized “to dispense with hyper-technical or strained interpretations [of the Penal Law] (citation omitted). Thus, conduct that falls within the plain natural language of a Penal Law provision may be punished as criminal” ( People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515, supra ). Finally, examination of Penal Law statutes includes analyzing their plain meaning, legislative intent and underlying sense and purpose ( see People v. Hedgeman, 70 N.Y.2d 533, 537, 523 N.Y.S.2d 46, 517 N.E.2d 858, supra).

As defendant acknowledges and this court's research confirms, P.L. § 130.95 is a relatively new statute for which there exists little or no legislative history or commentary ( see generally, Donnino, Practice Commentary, McKinney's Cons. Laws of NY, Book 39, Penal Law § 130.00 at 91 [2009 ed.] ). Additionally, the court has found no precedent in the case law that specifically addresses the issue of the application of P.L. § 130.95 raised by defendant.²

When the proposed amendment of the Penal Law to include the crime of Predatory Sexual Assault was before the Legislature, the Sponsor's Memorandum in Support noted that New York State's enactment and strengthening of laws, such as the Sexual Assault Reform Act of 2000 and the Sex Offender Registration Act, gave the state “a package of tough laws to combat sexual assault” (Sponsor's Mem., Bill Jacket, A8930A, ch. 107 at 6). Despite this, the memorandum asserted, more needed to be done. The legislative justification for P.L. § 130.95 was to “increase penalties to further deter and punish [such] crimes” ( id.)

It is clear from the plain language of P.L. § 130.95 and the limited legislative materials available that defendant's interpretation of its application is flawed. Defendant goes to great lengths to establish a threshold of egregiousness that must be met in order to charge Predatory Sexual Assault. However, nothing in the plain language of the statute or the legislative materials would support such a construction, the effect of which would be to deny “their most natural and obvious meaning” ( People v. Hedgeman, 70 N.Y.2d 533, 537, 523 N.Y.S.2d 46, 517 N.E.2d 858, supra ). Indeed, defendant's interpretation is exactly the strained and hyper-technical exercise courts have eschewed. The Legislature specifically chose to create a new crime, of greater severity than Rape in the First Degree, if the facts established one or more aggravating factors, including the use or threatened use of a dangerous instrument, and to label a defendant who commits this type of violent sexual offense a sexual predator. Under no reasonable interpretation could these two sections be considered identical. Therefore, the court rejects defendant's motion to dismiss Predatory Sexual Assault as contrary to the legislative intent of the statute.

2. Selective Prosecution

Defendant next argues that he has been singled out for prosecution under P.L. § 130.95, with its mandatory life sentence upon conviction, due to his race or religion ³ and that the charge must therefore be dismissed.

The defendant makes an undocumented reference to a notation in a detective's notes that the victim described her attacker as “possibly Afghani with a beard and a ... turban” (Defendant's Affirmation, p. 19). He makes another undocumented reference to being “described as male/arab [sic]” ( id.) Defendant then offers the bald assertion, premised “[u]pon information and belief,” that other defendants of “a different ethnicity or nationality” ⁴ were indicted for Rape in the First Degree but not for Predatory Sexual Assault.

In order to establish a claim for selective prosecution, “a litigant must show that the law was enforced with both an unequal hand' and an evil eye'; to wit, there must be a showing not only that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification' ” ( see People v. Blount, 90 N.Y.2d 998, 999, 665 N.Y.S.2d 626, 688 N.E.2d 500 [1997], quoting Matter of 303 West 42nd Street Corp. v. Klein, 46 N.Y.2d 686, 416 N.Y.S.2d 219, 389 N.E.2d 815 [1979] ). It is unquestionably a “heavy burden” ( People v. Goodman, 31 N.Y.2d 262, 268, 338 N.Y.S.2d 97, 290 N.E.2d 139 [1972] [citationomitted] ); (People v. Welch, 2 A.D.3d 1354, 1357, 770 N.Y.S.2d 230 [4th Dept. 2003], lv. denied2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2003] ).

In the case at bar, defendant has failed to meet his heavy burden of demonstrating that he is a subject of selective prosecution. No extended analysis is necessary to reject this claim. Neither has he provided sufficient grounds for the court to...