Opinion
No. 239 KA 22-00522
03-24-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RAYMOND CONGDON, DEFENDANT-APPELLANT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from a judgment of the Onondaga County Court (Gordon J. Cuffy, A.J.), rendered January 20, 2022. The judgment convicted defendant upon a nonjury verdict of promoting a sexual performance by a child (eight counts).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to dismiss the indictment is granted and the indictment is dismissed without prejudice to the People to re-present any appropriate charges to another grand jury.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15), defendant contends that reversal is required based on errors committed by the prosecutor during the grand jury proceedings. We agree. Here, the prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 N.Y.3d 290 [2012]), that some "affirmative act" is required to prove the crime, and that "viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images" (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" (People v Calbud, Inc., 49 N.Y.2d 389, 394 [1980]), we conclude under the circumstances of this case that the deficiencies in the prosecutor's charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor's cross-examination of defendant during the grand jury presentation in a manner that was "calculated to unfairly create a distinct implication that [defendant] was lying" (People v Nunez, 74 A.D.2d 805, 806 [1st Dept 1980]; see generally People v Hazlett, 167 A.D.2d 867, 868 [4th Dept 1990], lv denied 77 N.Y.2d 878 [1991]).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to support the conviction (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). Nevertheless, defendant's "conviction after trial does not cure [the] defective [g]rand [j]ury proceedings" (People v Huston, 88 N.Y.2d 400, 411 [1996]; see People v Connolly, 63 A.D.3d 1703, 1704-1705 [4th Dept 2009]; People v Samuels, 12 A.D.3d 695, 697 [2d Dept 2004]). We therefore reverse the judgment, grant that part of defendant's omnibus motion seeking to dismiss the indictment, and dismiss the indictment without prejudice to the People to re-present any appropriate charges to another grand jury (see Connolly, 63 A.D.3d at 1705).