People v. Wilcox

• Decision Date: 07 May 2021
• Docket Number: KA 20-00571,99
• Citation: 149 N.Y.S.3d 385,194 A.D.3d 1352
• Parties: The PEOPLE of the State of New York, Appellant, v. James R. WILCOX, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1352

149 N.Y.S.3d 385

The PEOPLE of the State of New York, Appellant,

v.James R. WILCOX, Defendant-Respondent.

99

KA 20-00571

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 7, 2021

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR APPELLANT.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to dismiss counts one and two of the indictment is denied, those counts of the indictment are reinstated, and the matter is remitted to Oswego County Court for further proceedings on the indictment.

Memorandum: As the result of a traffic stop of a vehicle in which defendant was a passenger that led to the discovery of, among other things, methamphetamine and a "one-pot" used in the manufacture of that controlled substance, defendant was indicted on charges of, as relevant here, criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09 [2] ) under count one of the indictment and unlawful manufacture of methamphetamine in the second degree ( § 220.74 [2] ) under count two. In his pretrial omnibus motion, as later supplemented, defendant sought, inter alia, dismissal of the indictment on several grounds. The People, as limited by their brief, appeal from an order to the extent that it granted those parts of the motion seeking to dismiss the indictment in its entirety pursuant to CPL 210.20 (1) (c) and CPL 210.35 on the ground that the grand jury proceeding was defective and seeking to dismiss count two of the indictment pursuant to CPL 210.20 (1) (b) on the ground that the evidence before the grand jury was not legally sufficient with respect to that count.

The People first contend that County Court, in dismissing the indictment pursuant to CPL 210.20 (1) (c) and CPL 210.35, erred by determining that the prosecution improperly refused to present to the grand jury defendant's request for certain witnesses, i.e., two of the vehicle's other occupants who had provided new statements ostensibly exculpating defendant. We reject that contention. "CPL article 190 governs the conduct of the grand jury and the parties which appear before that body" ( People v. Thompson , 22 N.Y.3d 687, 697, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rearg denied 23 N.Y.3d 948, 987 N.Y.S.2d 601, 10 N.E.3d 1157 [2014] ). "Under this statutory regime, the exclusive ‘legal advisors of the grand jury are the court and the district attorney’ ..., and their decision to present certain items of evidence and to exclude others is for the most part limited only by the rules of evidence applicable at trial" ( id. ). "In the same vein, the prosecutor enjoys ‘broad powers and duties, as well as wide discretion in presenting the People's case’ to the grand jury" ( id. , quoting People v. Huston , 88 N.Y.2d 400, 406, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ; see People v. Lancaster , 69 N.Y.2d 20, 25, 511 N.Y.S.2d 559, 503 N.E.2d 990 [1986], cert denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697 [1987] ). "Indeed, the prosecutor ‘determines the competency of witnesses to testify,’ and he or she ‘must instruct the jury on the legal significance of the evidence’ " ( Thompson , 22 N.Y.3d at 697, 985 N.Y.S.2d 428, 8 N.E.3d 803, quoting People v. Di Falco , 44 N.Y.2d 482, 487, 406 N.Y.S.2d 279, 377 N.E.2d 732 [1978] ; see Huston , 88 N.Y.2d at 406, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ).

"Of course, the grand jurors are empowered to carry out numerous vital functions independently of the prosecutor, for they ha[ve] long been heralded as the shield of innocence ... and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source" ( Thompson , 22 N.Y.3d at 698, 985 N.Y.S.2d 428, 8 N.E.3d 803 [internal quotation marks omitted]; see People v. Sayavong , 83 N.Y.2d 702, 706, 613 N.Y.S.2d 343, 635 N.E.2d 1213 [1994] ; People v. Minet , 296 N.Y. 315, 323, 73 N.E.2d 529 [1947] ). Thus, CPL 190.50 (3) "grants the grand jury the power to subpoena witnesses, including witnesses not called by the People, and the prosecutor must comply with the grand jury's order for such testimony" ( Thompson , 22 N.Y.3d at 698, 985 N.Y.S.2d 428, 8 N.E.3d 803 ). Pursuant to that subdivision, "[i]f the grand jurors ask to hear from a witness, the prosecutor has no recourse to prevent the witness from appearing, save for a motion for an order vacating or modifying their subpoena on the ground that ‘such is in the public interest’ " ( id. , quoting CPL 190.50 [3] ). "In addition, the defendant may specifically ask the grand jury to exercise its power to call a witness of his or her selection, and ‘[t]he grand jury may as a matter of discretion grant such request and cause such witness to be called’ " ( id. , quoting CPL 190.50 [6] ). "In the non-adversarial context of grand jury proceedings, however, the defendant's statutory power to seek the appearance of a witness is one of ‘limited extent’ " ( id. at 698-699, 985 N.Y.S.2d 428, 8 N.E.3d 803, quoting Lancaster , 69 N.Y.2d at 26, 511 N.Y.S.2d 559, 503 N.E.2d 990 ).

Contrary to the People's contention, "under CPL 190.50 (6) [,] the decision whether to grant a defendant's request to call a person as a witness is solely within the discretion of the grand jury," and "[t]he grand jury is given that discretion in the exercise of its function to ‘uncover the facts accurately and conduct a reliable investigation’ " ( People v. Hill , 8 A.D.3d 1076, 1076, 778 N.Y.S.2d 653 [4th Dept. 2004], affd 5 N.Y.3d 772, 801 N.Y.S.2d 794, 835 N.E.2d 654 [2005], quoting Huston , 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; see People v. Baptiste , 160 A.D.3d 976, 978, 76 N.Y.S.3d 103 [2d Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ). The statute thus imposes an obligation on the People to inform the grand jury of a defendant's request to call witnesses, and the grand jury, not the prosecutor, is independently empowered with the prerogative to grant or deny such a request ( CPL 190.50 [3], [6] ; see Thompson , 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 ; People v. Calkins , 85 A.D.3d 1676, 1677, 925 N.Y.S.2d 773 [4th Dept. 2011] ; People v. Butterfield , 267 A.D.2d 870, 872, 702 N.Y.S.2d 140 [3d Dept. 1999], lv denied 95 N.Y.2d 833, 713 N.Y.S.2d 139, 735 N.E.2d 419 [2000] ; see also People v. Manragh , 32 N.Y.3d 1101, 1104-1105, 90 N.Y.S.3d 623, 114 N.E.3d 1076 [2018, Rivera, J., concurring]). In other words, a prosecutor may not "suppress[ a] defendant's request to call ... witness[es] nor strip[ ] the grand jury of its discretion to grant or deny that request" ( Thompson , 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 ). Instead, "[a]lthough [a] prosecutor [cannot] avoid presenting [a requested] witness's name for a vote, the prosecutor [is] free, in the role of advisor to the grand jury, to explain that the witness [does] not have relevant information [or] primarily offer[s] inadmissible hearsay testimony, and if unpersuasive in this effort, the prosecutor [may seek] a court order quashing the subpoena or limiting the witness's testimony as provided in CPL 190.50 (3)" ( Manragh , 32 N.Y.3d at 1105 n. 1, 90 N.Y.S.3d 623, 114 N.E.3d 1076 [Rivera, J., concurring]; accord Thompson , 22 N.Y.3d at 699-700, 985 N.Y.S.2d 428, 8 N.E.3d 803 ). We thus conclude that the court properly determined that the People, despite their stated concerns about the admissibility of the proposed testimony, violated their statutory obligation by refusing to present to the grand jury defendant's request that two of the vehicle's other occupants be called as witnesses.

We nonetheless agree with the People that, under the circumstances of this case, the court erred in determining that the extraordinary remedy of dismissal of the indictment was warranted based on the People's failure to present defendant's request to the grand jury. A court may enforce the abovementioned statutory rules "by dismissing an indictment that ‘fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result’ " ( Thompson , 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803, quoting CPL 210.35 [5] ; see CPL 210.20 [1] [c] ; People v. Hill , 5 N.Y.3d 772, 773, 801 N.Y.S.2d 794, 835 N.E.2d 654 [2005] ). "The ‘exceptional remedy of dismissal’ is available in ‘rare cases’ of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant" ( Thompson , 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803, quoting Huston , 88 N.Y.2d at 409, 410, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ). "In general, this demanding test is met only where the prosecutor engages in an ‘over-all pattern of bias and misconduct’ that is ‘pervasive’ and typically willful, whereas isolated instances of misconduct, including the erroneous handling of evidentiary matters, do not merit invalidation of the indictment" ( id. , quoting Huston , 88 N.Y.2d at 408, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; see People v. Pelchat , 62 N.Y.2d 97, 106-107, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984] ). " ‘[T]he statutory test, which does not turn on mere flaw, error or skewing ... is very precise and very high’ " ( Thompson , 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803, quoting People v. Darby , 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974 [1990] ).

Here, even if the People had properly presented defendant's request and the grand jury had then voted to subpoena the witnesses, the People would have been able to vacate the first witness's subpoena pursuant to CPL 190.50 (3) because, as a codefendant under consideration by the same grand jury who had not asserted his qualified right to testify voluntarily (see CPL 190.50 [5] ), he could "not...