Opinion
5957/2014.
10-23-2014
The PEOPLE of the State of New York, Plaintiff, v. Tyqwan CHRISTBURG, Defendant.
The Law Office of Craig Newman By Craig Newman, Brooklyn, for the Defendant. The Kings County District Attorney's Office By Elizabeth Moehle, Brooklyn, for the People.
The Law Office of Craig Newman By Craig Newman, Brooklyn, for the Defendant.
The Kings County District Attorney's Office By Elizabeth Moehle, Brooklyn, for the People.
Opinion
BETTY J. WILLIAMS, J.Defendant's motion to inspect the Grand Jury minutes is granted to the extent of the court examining them in camera. On a motion to dismiss an indictment under C.P.L. § 210.20(1)(b), the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause, since that inquiry is exclusively the province of the Grand Jury (People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986] ; see also People v. Jensen, 86 N.Y.2d 248, 252, 630 N.Y.S.2d 989, 654 N.E.2d 1237 [1995] ). Upon an in camera review of the instant Six Count indictment: Counts One, Five and Six are legally sufficient; Counts Two, Three and Four are dismissed as follows:
The defendant, while acting in concert with others, is alleged to have stolen various desktops, monitors and laptops from a middle school. The People presented evidence, through a custodial engineer and a police officer. The custodial engineer only testified that the premises was a middle school and that the defendant was neither a student nor employee of the middle school. The police officer testified to responding to a radio run of a burglary in progress at approximately 8:55 p.m. Upon arrival, the police officer personally observed the defendant and two accomplices attempting to climb over the middle school gate while in possession of the alleged stolen property. Once the defendant became aware of the police officers' presence, the defendant dropped the computer equipment and attempted to scale a scaffold in an effort to flee. After the defendant was apprehended, the police officers recovered the stolen property, which consisted of eleven Macbook Airs laptop computers and two Apple desktop monitors.
The following was the only testimony presented to the Grand Jury regarding the value of the stolen property, which came from the police officer:
Q. And what, if anything, did you do with the property after you removed it back to the present [sic]?
A. That's when we determined the value of the computers.
Q. After you removed the property to the precinct, was the property eventually vouchered?
A. It wasn't vouchered, we determined the property
and then we returned it to the principle [sic] of the school.
Q. Okay, you returned the property to the school?
A. Yes.
Q. And you stated that you were able to determine the value of the property?
A. Yes
Q. How were you—I'm sorry, what did you estimate the value of the property to be?
A. To be over $13,000.
Q. How were you able to approximate the value of the property?
A. A computer search.
In this indictment there was insufficient evidence presented to the Grand Jury regarding value of the alleged stolen property where Count Two charges Grand Larceny in the Third Degree, (PL § 155.35[1] ), and Count Three charges Grand Larceny in the Fourth Degree, (PL § 155.30[1] ). The only evidence of the value of the stolen property presented was testimony from the police officer. Based only upon “a computer search”, the police approximated the value of the unvouchered, stolen property “to be over $13,000.” However, the People are required to present the Grand Jury with sufficient evidence to establish the value of property where value is an element of the grand larceny theory alleged (People v. Mathis, 179 A.D.2d 779, 579 N.Y.S.2d 142 [2d Dep't], app. denied 79 N.Y.2d 1004, 584 N.Y.S.2d 458, 594 N.E.2d 952 [1992] ; see also People v. Ju Ju Jiang, 99 A.D.3d 724, 951 N.Y.S.2d 749 [2d Dep't]lv. denied 20 N.Y.3d 1062, 962 N.Y.S.2d 613, 985 N.E.2d 923 [2013] ; People v. Seymour, 77 A.D.3d 976, 910 N.Y.S.2d 487 [2d Dep't 2010] ). Evidence of value must not be presented to the Grand Jury in an approximated and conclusory manner. (People v. Walker, 119 A.D.3d 1402, 989 N.Y.S.2d 756 [4th Dep't 2014] ; see also People v. Helms, 119 A.D.3d 1153, 990 N.Y.S.2d 314 [3d Dep't 2014] ). There was no testimony regarding: (a) the actual value of the stolen property, specifically each Macbook Air and Apple desktop monitor; (b) who determined the approximate value of the stolen property; (c) how the computer search was conducted by the police to determine the value of the stolen property, and; (d) the reliability of the computer source used to approximate the value of the stolen property. Even in the light most favorable to the People, such conclusory statements of approximate value are insufficient to establish value before the Grand Jury (Walker, supra; Helms, supra ). Accordingly, Counts Two and Three are dismissed with leave for the People to represent to a new Grand Jury (Mathis, supra; Ju Ju Jiang, supra; Seymour, supra ).Count Four in this indictment incorrectly charges Criminal Trespass in the Third Degree pursuant to PL § 140.10(b) instead of Criminal Trespass in the Third Degree pursuant to PL § 140.10(a). The People presented sufficient evidence and properly charged the Grand Jury with the law regarding PL § 140.10(a). However, there were neither facts presented nor a charge on the law given to the Grand Jury with regard to PL § 140.10(b). Therefore, the People are granted thirty (30) days leave to amend Count Four of the indictment to conform to the evidence and accurately reflect the criminal act for which the Grand Jury intended to indict the defendant, which was PL § 140.10(a). (CPL § 200.70[1] ; People v. Hood, 194 A.D.2d 556, 598 N.Y.S.2d 569 [2d Dep't], lv. den 82 N.Y.2d 720, 602 N.Y.S.2d 817, 622 N.E.2d 318 [1993] ). The amendment would neither change the theory of the prosecution nor prejudice the defendant. (People v. Clabeaux, 277 A.D.2d 988, 716 N.Y.S.2d 526 [4th Dep't], lv. den 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ). Should the People fail to amend Count Four within thirty (30) days, then Count Four shall be dismissed with leave to represent.
Accordingly, Counts Two and Three of the indictment are dismissed with leave for the People to represent, as the proof before the Grand Jury was insufficient to establish the offenses charged. (Jensen, 86 N.Y.2d at 252, 630 N.Y.S.2d 989, 654 N.E.2d 1237 ; People v. Mayer, 1 A.D.3d 461, 463, 768 N.Y.S.2d 222 [2d Dep't 2003] ). Count Four of the indictment is dismissed with leave to amend within thirty (30) days or leave for the People to represent, as the instructions on the law was improper for Count Four as it appears on the indictment. (People v. Calbud, Inc., 49 N.Y.2d 389, 394–95, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980] ; People v. Burch, 108 A.D.3d 679, 968 N.Y.S.2d 592 [2d Dep't], lv. den 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ).
Counts, One, Five and Six, are legally sufficient to establish the offenses charged. The Grand Jurors were adequately informed of the essential elements of the crimes the Grand Jurors were being asked to consider with respect to Counts One, Five and Six charging Burglary in the Third Degree, (PL § 140.20), Trespass, (PL § 140.05), and Petit Larceny, (PL § 155.25), respectively. (Burch, 108 A.D.3d at 681, 968 N.Y.S.2d 592 ).
The foregoing constitutes the decision and order of the court.