People v. Wesley

• Citation: 615 N.Y.S.2d 611,161 Misc.2d 786
• Parties: The PEOPLE of the State of New York v. Raymond WESLEY, Defendant.
• Decision Date: 22 June 1994
• Court: New York Supreme Court

Page 611

615 N.Y.S.2d 611

161 Misc.2d 786

The PEOPLE of the State of New York v. Raymond WESLEY, Defendant.

Supreme Court, Criminal Term Kings County, Part 37.

June 22, 1994.

Charles J. Hynes, Dist. Atty. Kings County (Erica Prager, of counsel), Brooklyn, for the People.

Legal Aid Society (Robert Massey of counsel), Brooklyn, for defendant.

JEROME M. KAY, Justice.

Defendant moves to inspect the Grand Jury minutes and to dismiss the indictment.

In deciding defendant's motion, the court considered defendant's motion papers, and the minutes of the proceedings before the Grand Jury. After receiving the minutes, the Court sent a letter to both sides requesting they address certain issues. Both sides have complied. The court has also considered the briefs submitted by the parties and oral argument.

After signing a waiver of immunity, the defendant testified before the Grand Jury that on October 30, 1993, he was speaking to a prostitute in the area of Halsey Street and Riversale Avenue when shooting erupted in the area. He dropped to the ground, and while on the ground, he noticed someone drop a gun. Defendant picked the gun up and put it in his waistband in order to prevent children in the neighborhood from finding it. Defendant started to walk away from the area where he found the gun with the intent of turning it over to the police. Before he found a telephone that worked, he was stopped and arrested by the police. Defendant stated that he told the officer that he had the gun on him, and told him of his intent to turn the gun over, but the officer would not "hear" his explanation.

On November 8, 1993, after completing the presentation of evidence before the Grand Jury, and after charging the Grand Jury with general principles of law, the prosecution charged the Grand Jury with presumption of intent to use a weapon contained in Penal Law Sec. 265.15, Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree and Reckless Endangerment in the Second Degree. These charges essentially followed the language of the respective Penal Law sections (Penal Law Sec. 120.20, Sec. 265.03, Sec. 265.02(4)).

After the Grand Jury deliberated, the foreperson announced that it had voted a true bill to Criminal Possession of a Weapon in the Second Degree, but no true bill as to Criminal Possession of a Weapon in the Third Degree and Reckless Endangerment in the Second Degree.

Later the same day, the prosecutor informed the Grand Jury that she was going to recharge Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree because its vote on those counts was inconsistent with the law. She told the Grand Jury that if it had any questions regarding the difference between the two offenses, it could ask them after she recharged. After the prosecutor recharged, the Grand Jury had no such questions and, following deliberations, returned a true bill for both Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree.

By order dated March 9, 1994, this court turned over to the defendant a copy of his testimony before the Grand Jury and a copy of the prosecutor's two charges, and requested that both parties submit briefs on the failure to charge temporary and lawful possession, the effect of CPL 190.75, and whether resubmission should be barred by the no true bill on all counts. Since this order, both sides have submitted briefs and the People have orally conceded that the failure to charge temporary and lawful possession of a weapon was error.

Temporary Lawful Possession

The first issue before the court is whether the prosecutor impaired the integrity of the Grand Jury proceedings to the possible prejudice of the defendant by failing to charge the defense of temporary and lawful possession of a weapon.

Because of the different functions of Grand Juries and Petit Juries, a Grand Jury need not be instructed with the same degree of precision (People v. Calbud, Inc., 49 N.Y.2d 389, 394-395, 426 N.Y.S.2d 238, 402 N.E.2d 1140). The instruction will be found 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" (People v. Calbud, supra). However, instructions "may not be so misleading or incomplete as to substantially undermine the integrity of the proceeding" (People v. Caracciola, 78 N.Y.2d 1021, 1022, 576 N.Y.S.2d 74, 581 N.E.2d 1329).

The prosecutor's duty to instruct the Grand Jury as to defenses turns on the potential for eliminating needless or unfounded litigation (People v. Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418). Mitigating defenses or defenses related to mental disease or defect need not be charged (People v. Lancaster, 69 N.Y.2d 20, 29, 511 N.Y.S.2d 559, 503 N.E.2d 990 cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697). Exculpatory defenses must be charged since, if accepted by the Grand Jury, they would prevent unwarranted prosecution (People v. Valles, supra, 62 N.Y.2d at 39, 476 N.Y.S.2d 50, 464 N.E.2d 418).

The defense of temporary and lawful possession is an exculpatory defense (see People v. Maize, NYLJ, May 31, 1994, at 36, col. 5; People v. Jose C., 127 Misc.2d 689, 487 N.Y.S.2d 499). The defense is based on the recognition that possession of a weapon might arise "unavoidably from the performance of some lawful act" (People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372). In such a case, "the innocent nature of the possession negates both the criminal act of possession and the intent with which the act is undertaken when intent is an element of the crime" (People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463). Therefore, it is a complete defense that would entirely forestall prosecution and must be charged if the evidence before the Grand Jury is sufficient to establish the defense (People v. Maize, supra; see, People v. Mitchell, 82 N.Y.2d 509, 514-515, 605 N.Y.S.2d 655, 626 N.E.2d 630).

To trigger the right to the charge, there must be evidence in the record showing that the defendant had a legal excuse for possessing the weapon, as well as evidence that once obtained, the defendant did not use it in a dangerous manner (People v. Williams, supra, 50 N.Y.2d, at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372, citing People v. LaPella, 272 N.Y. 81, 4 N.E.2d 943; People v. Persce, 204 N.Y. 397, 402, 97 N.E. 877).

Here, defendant alleged that he came into possession of the gun innocently by finding it on the street (see People v. LaPella, supra, 272 N.Y., at 82-83, 4 N.E.2d 943), but that he was arrested before he could carry out his intention of turning the gun over to the police (People v. Thomas, 172 A.D.2d 572, 568 N.Y.S.2d 139; cf. People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653).

The defendant having presented evidence establishing the defense, the District Attorney was required to charge temporary and lawful possession (People v. Mitchell, supra, 82 N.Y.2d at 514-515, 605 N.Y.S.2d 655, 626 N.E.2d 630).

Since the defense is not evident from the statutory language charged to the Grand Jury, the Grand Jury had no guide to the meaning of defendant's testimony. Moreover, the Grand Jury's vote of no true bill, at least on the Reckless Endangerment count, may reflect acceptance of defendant's testimony. In this light there exists the possibility of prejudice (see People v. Sayavong, 83 N.Y.2d 702, 613 N.Y.S.2d 343, 635 N.E.2d 1213; People v. DiFalco, 44 N.Y.2d 482, 487-88, 406 N.Y.S.2d 279, 377 N.E.2d 732). The instructions were so incomplete that they substantially undermined the proceeding and the indictment must be dismissed (People v. Caracciola, supra, 78 N.Y.2d, at 1022, 576 N.Y.S.2d 74, 581 N.E.2d 1329).

CPL 190.75

Violation

Where a court dismisses an indictment on the ground that the prosecution failed to charge a defense, there is normally no bar to allowing resubmission (CPL 210.20[4]. However, where a Grand Jury dismisses a charge, resubmission is governed by the requirements of CPL 190.75(3). Under this section, the presumption is against resubmission (People v. Dykes, 86 A.D.2d 191, 195, 449 N.Y.S.2d 284; People v. Martin, 71 A.D.2d 928, 929, 419 N.Y.S.2d 724; see also People v. Franco, 196 A.D.2d 357, 612 N.Y.S.2d 591). A decision on the proper standard for resubmission requires this Court to determine whether the Grand Jury's initial vote of no true bill for Criminal Possession of a Weapon in the Third Degree constituted a dismissal of that charge.

CPL 190.75(1) provides that the foreman of the Grand Jury must file the vote of dismissal with the Court. Here the vote was not filed because the prosecutor was dissatisfied with the vote and resubmitted the charge for reconsideration. This Court must decide whether filing of the vote of no true bill is necessary for the vote to constitute a dismissal and thus requiring Court approval for resubmission (CPL 190.75[3].

Although an older nisi prius Court opinion found that filing is required (People v. Stecker, 141 Misc. 417, 418, 252 N.Y.S. 187), more recently, nisi prius Courts have rejected Stecker. These courts hold that strict adherence to the filing requirement would allow prosecutors to evade the requirements of Court approval by never filing the dismissal and then resubmitting the case. (See People v. Smith, 159 Misc.2d 77, 82, 602 N.Y.S.2d 999; People v. Davis, 114 Misc.2d 645, 647, 452 N.Y.S.2d 169; People v. DeLio, 75 Misc.2d 711, 713, 348 N.Y.S.2d 703). As of yet, no Appellate Court has expressly dealt with the filing requirement in this context. (Cf. People v. Tindal, 99 A.D.2d 661, 472 N.Y.S.2d 236).

In People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542, after the...