People v. Wilson
| Decision Date | 17 July 1980 |
| Citation | 430 N.Y.S.2d 715,77 A.D.2d 713 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Malcolm Cola WILSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Arthur Carl Spring, Johnstown, for appellant.
Steven Foyer, Sp. Dist. Atty. of Fulton County, Criminal Justice Appellate Reference Service, New York City, for respondent.
Before SWEENEY, J. P., and KANE, STALEY, MAIN and CASEY, JJ.
MEMORANDUM DECISION.Appeal from a judgment of the County Court of Fulton County, rendered November 6, 1978, upon a verdict convicting defendant of one count of the crime of sodomy in the first degree and six counts of the crime of sexual abuse in the first degree.
As a result of several incidents which allegedly occurred at various times between August 1, 1977 and December 31, 1977, defendant was indicted by a Fulton County Grand Jury on five counts of rape in the first degree, three counts of sodomy in the first degree and two counts of sexual abuse in the first degree. The crimes charged were all allegedly perpetrated upon a five-year-old girl who was the daughter of the woman with whom defendant was living in a mobile home in the Town of Mayfield Fulton County. Following a jury trial, defendant was convicted on one count of sodomy in the first degree and one count of sexual abuse in the first degree, and with regard to each of the five rape counts he was convicted of the lesser included offense of sexual abuse in the first degree. He was thereafter sentenced on the sodomy conviction to an indeterminate term of imprisonment with a maximum of twenty-one years and a minimum of seven years, and he received six indeterminate sentences of zero to seven years on the sexual abuse convictions. All of the sentences imposed were to run concurrently.
On this appeal defendant argues that the indictment against him should be dismissed pursuant to CPL 210.35 on the ground that the Grand Jury proceeding was defective and failed to conform with article 190 of the Criminal Procedure Law. We disagree. Basically, it is defendant's position that the proceeding was defective because Suzanne Hoyt remained in the Grand Jury room, after she had testified, to be with her daughter while she testified, and thereby provide her daughter with moral support. While under former law the presence of the two witnesses together might by itself have mandated a dismissal of the indictment (see People v. Minet, 296 N.Y. 315, 73 N.E.2d 529), it is now clear that under CPL 210.35 (subd. 5) an indictment will not be dismissed unless it is demonstrated that the presence of two witnesses together may have possibly resulted in prejudice to the subject defendant (People v. Di Falco, 44...
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