Opinion
07-066.
Decided January 10, 2008.
Hon. R. Michael Tantillo, Special Seneca County District Attorney, Counsel for the People.
Napier Napier, Esqs., (Robert A. Napier, Esq., of Counsel), Counsel for the Defendant.
A Special Grand Jury was empaneled on January 3, 2007 in order to investigate allegations of criminal conduct and/or other misconduct, non-feasance, or neglect in public office in Seneca County. The Grand Jury met on various dates beginning January 3, 2007 and ending August 22, 2007, resulting in various Indictments and grand jury reports.
Defendant at bar, Leo T. Connolly, Seneca County Sheriff at the time of the Indictment, was charged by the Special Grand Jury with one Count of Offering a False Instrument for Filing in the First Degree, a class E Felony, in violation of § 175.35 of the Penal Law; one Count of Falsifying Business Records in the Second Degree, a class A misdemeanor, in violation of § 175.05(1); three Counts of Official Misconduct, a class A misdemeanor, in violation of § 195.00(1); one Count of Rewarding Official Misconduct in the Second Degree, a class E Felony, in violation of § 200.20 of the Penal Law; and one Count of Perjury in the First Degree, a class D Felony, in violation of § 210.15 of the Penal Law.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated November 19, 2007, accompanying affidavit and other supporting documents.
Upon argument of his Omnibus Motions on November 29, 2007, certain branches and elements therein were decided and determined upon said argument and incorporated into an order.
The Court also reserved decision, at the conclusion of oral arguments on the following issues:
1. The Grand Jury proceedings failed to conform to the requirements of CPL Article 190 pursuant to CPL sections 210.20(1)(c) and 210.35;
2. Inspection of the Grand Jury minutes and, upon such inspection, for a dismissal of the indictment on the grounds that it was defective and/or the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser offenses as well as other stated grounds. CPL sections 210.20(1)(a) and (b) and 210.30; or in the alternative reduction pursuant to CPL section 210.20(1-a); and
3. Dismissal of Counts six and seven of the Indictment.
Based on the defendant's motion papers, the District Attorney's responding affirmation datedDecember 10, 2007; the Grand Jury Minutes; vote/payroll/attendance records; grand jury booklets; the Court's instruction to the Grand Jury, the arguments had; all subsequent submissions by counsel and the proceedings herein the Court decides as follows:
THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS
The defendant requests that the Court disclose the minutes of the Grand Jury proceedings. However, maintaining the secrecy or confidentiality of grand jury minutes is a matter of paramount public interest. Ruggiero v. Fahey, 103 AD2d 65. The secrecy is jealously guarded because confidentiality of its proceedings is necessary to ensure its continued effectiveness. Matter of Grand Jury, New York County, 125 Misc 2d 918.
However, in the discretion of the Trial Court, disclosure may be directed, when after balancing of the public interest in disclosure against one favoring secrecy, the former outweighs the latter. Matter of District Attorney of Suffolk County, 58 NY2d 436; Application of Fojp Service Corp., 119 Misc 2d 287.
In order for the Court to release the grand jury minutes to defense counsel, counsel must "first establish a compelling and particularized need for them". People v. Shakiya Robinson and Bruce Jamsen, 98 NY2d 755. "Only then must the court assess in its discretion, whether disclosure is appropriate under the circumstances". People v. Fetcher, 91 NY2d 765. It is a two-step process that conforms to the due process requirements of the Constitution. People v. Ramos, 85 NY2d 678.
Based on a review of the Grand Jury Proceedings the Court determines that it does not need counsel's assistance by turning over said minutes in order to properly rule on this issue. The Court finds no compelling and particularized need for disclosure, persuasive enough to overcome the strong presumption in favor of secrecy. Fojp, supra . Furthermore, the defendant was not able to meet his burden to establish a compelling need for the minutes.
The defendant also moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35.
An Indictment regular on its face must be presumed to have been properly returned by the Grand Jury. People v. Smith, 128 NYS2d 90, aff'd 283 AD 775. Furthermore, Grand Jury proceedings carry a presumption of regularity and to overcome that presumption there must be a showing by the defendant of a particularized need or gross and prejudicial irregularity in the proceedings or some other similarly compelling reason. People v. Lewis, 98 AD2d 853.
The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).
An Indictment imparts absolute verity until properly impeached, and until there is satisfactory proof to the contrary, it is presumptively regular, not only in its basis upon sufficient legal evidence, but also in its foundation upon lawful proceedings by the grand jury, including due concurrence in indictment by the requisite number of grand jurors. People vs. Brinkman, 309 NY 974, 975.
The presumption is in favor of the validity of an indictment, which was presented by a grand jury, 22 of whose members were present when the case was presented. People v. Blair, 17 Misc 2d 265. And the Grand Jury is privileged to return an indictment so long as at least 12 of the Grand Jurors who voted to indict heard all the essential and critical evidence. People v. Brinkman, supra; People v. Infante, 124 AD2d 86.
The Court finds that the presentation of the charges at bar took place on various days between the period of January 24, 2007 through August 22, 2007. The Court notes that 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1)] on each particular charge and more than twelve grand jurors voted to indict this defendant on each of the counts charged. [CPL sections 210.35(2) and (3)].
The defendant also alleges that the Grand Jury proceeding failed to otherwise conform to the requirements of CPL Article 190 to such a degree that the defendant was prejudiced and that the Grand Jury's integrity was impaired. CPL section 210.35(5).
In conjunction with this the Court has carefully reviewed the instructions given the Grand Jury by the Court and Special District Attorney as well as CPL Article 190 as it pertains to the present indictment.
In order to help ensure that the Grand Jury properly performs its function, the Court and the Special District Attorney are designated to act as its legal advisors [see CPL section 190.25 (6)]. One of the duties of the legal advisor is that it "must instruct the grand jury concerning the law with respect to its duties or any matter before it" in instances "[w]here necessary or appropriate" [CPL section 190.25 (6)]. No statutory provision expands upon the meaning of the phrase, "necessary or appropriate", or addresses the issue of the specificity required when instructions are given. People v. Malave, 124 Misc 2d 210, 212. People v. Calbud, Inc., 49 NY2d 389, 394 as quoted in Malave, supra at pp. 212-213, states the Court of Appeals noted in part as follows:
". . . due to the `functional difference' between the grand jury and a petit jury `it would be unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court's instructions to a petit jury.' It further observed (p 394) that `the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected' in CPL 190.25 (sub 6) and in CPL 300.10 (subd 2). Whereas CPL 190.25 (subd 6) merely requires that the Grand Jury must be instructed where `necessary or appropriate', the court noted (p. 394) that CPL 300.10 (subd 2) contains specific requirements concerning the legal instructions that must be provided to a petit jury. The Court (pp. 394-395) deemed `it 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."
". . . . CPL 190.60 is silent as to the duty of the legal advisor with respect to instructing the Grand Jury as to its options upon hearing the evidence before it. The language of CPL 190.60 is couched in terms of the permissive and merely provides that `[a]fter hearing and examining evidence***a grand jury may' take certain prescribed actions, including voting to indict an individual for an offense and voting to dismiss the charge before it." Malave, supra p. 213.
As legal advisor, the District Attorney is entrusted with the duty of instructing the Grand Jury concerning the law or any matter properly before it and normally it is sufficient for the prosecutor to read the appropriate Penal Law sections to the Grand Jury. People v. Kennedy, 127 Misc 2d 712.
When considering the issue of sufficiency, one must understand that the function of the Grand Jury is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject he or she to criminal prosecution. This function is opposed to that of a petit jury, which bears the ultimate responsibility of determining the guilt or innocence of the accused. Calbud, supra .
Therefore, a Grand Jury indictment is authorized when the evidence before it is legally sufficient to establish that such person committed a crime, and competent and admissible evidence provides reasonable cause to believe that such person committed the crime. [CPL section 190.65 (1)]. And the standard of review upon a motion to dismiss for legal insufficiency is whether the evidence before the Grand Jury if unexplained and uncontradicted would warrant a conviction by a trial jury. People v. Pelchat, 62 NY2d 97; People v. Dunleavy, 41 AD2d 717, affd 33 NY2d 573.
"Legally sufficient evidence" means competent evidence which if accepted as true, would establish every element of the offense charged and the defendant's commission thereof; except when corroboration required by law is absent. [CPL section 70.10(1)].
Under CPL section 70.10(2) "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.
Therefore, the evidence before a Grand Jury is legally sufficient if there is competent evidence, which, if accepted as true, establishes every element of the offense charged or a lesser included offense and the defendant's commission thereof. People v. Mayo, 36 NY2d 1002.
Thus, it has been stated that "the evidence [before the Grand Jury] must be viewed in the light most favorable to the People and it may be legally sufficient although it does not even provide "reasonable cause", to believe that the defendant committed the crime charged. People v. Deitsch, 97 AD2d 327, 329.
GRAND JUROR ISSUES
Defense counsel argues that the entire Indictment must be dismissed or at least a hearing be held because one of the grand jurors was related to the two victims subject to Count Three of the Indictment. Therefore the proceedings before the Grand Jury have been impaired resulting in prejudice to the defendant. [CPL § 210.35(5)].
There is no legal requirement that there be a voir dire of grand jurors when empaneled. People v. Melville, Not Reported in NY S. 2d, but see 2001 WL 1356362. Indeed, the Criminal Procedure Law, effective September 1, 1971, "eliminated the former procedure that permitted pre-indictment challenge to individual grand jurors (see Code of Criminal Procedure §§ 230-235) and substituted the provisions set forth in subdivision two of [CPL § 190.20] permitting the Court on its own motion to . . . discharge a [grand juror] already sworn . . ." Preiser Practice Commentaries to McKinney's § 190.20, main vol., pg. 286.
The Special District Attorney responded in his answering affirmation that the grand juror in question did in fact bring the relationship to his attention. In addition, the grand juror was properly excused and abstained from hearing any testimony by the two victims, or participating in any deliberations and/or voting on any allegations involving those victims. See People v. LaDuca, 172 AD2d 1054.
In addition, the Special District Attorney submitted an affidavit of the grand juror in question which indicates that the grand juror did advise the Special District Attorney of this relationship, once it became apparent, that the relatives would be possible witnesses before the grand jury. The grand juror indicated that he/she was absent from the grand jury room during any relative's testimony, did not participate in any deliberations or vote on any charges that in any way involved them. The grand juror further attested that she/he left the grand jury room when the relatives testified. The grand juror also left the grand jury room when deliberations involving their testimony occurred and when any votes were taken involving their matters, here Count Three. At no time did the grand juror participate in any matters that involved her/his relatives. The grand juror also indicated that at no time did the grand juror discuss the circumstances with his/her fellow jurors. And the grand juror did not do anything to lobby or influence any fellow jurors regarding these matters.
It also appears from the grand jury minutes that these relationships only came to light after the grand jury was empaneled, received its instructions from the Court and after there had been unrelated matters presented at earlier sessions.
At the outset, the question of whether a particular presentment was so improper as to impair the integrity of the Grand Jury proceedings and to create the potential for prejudice is a question of law for the Court. People v. Adessa, 89 NY2d 677, 684-685.
Therefore the Court will make its determination based upon the record before it, and rejects defendant's request for an evidentiary hearing, since such a hearing may very well lead to an invasion of the Grand Jury's cloak of secrecy and might prove to be an imprudent invasion of the thought process of individual jurors.
Does the scope of the investigation and the presence in the grand jury of the specific grand juror require the Court, as a matter of law, to find implied and actual bias which undermined the integrity of the grand jury such that the constituted body could not have acted impartially, fairly and without prejudice? ( People v Reilly), 71 Misc 2d 227
The dismissal of an indictment due to a defective grand jury proceeding should be limited to the instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. People v. Huston, 88 NY2d 400, 409. "The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias ( People v. Welch , 2 AD3d 1354 , 1356, quoting People v. Huston, 88 NY2d 400, 409) and it is the defendant's burden to demonstrate the existence of defects impairing the integrity of the Grand Jury proceeding and giving rise to the possibility of prejudice." People v. Welch, 2AD3d 1354, 135, citing People v. Wood, 291 AD 824, quoting People v. Santmyer, 255 AD3d 871.
People v. Hussein, 150 Misc 2d 119, 120 defines the roles of Grand and Petit Jury as follows:
"There is a distinction in function between the grand jury and the petit jury; the one accuses and the other determines. Second, the precedents mandating close examination of trial jurors rarely, if ever, apply to grand jurors."
Hussein also states that modern constitutional jurisprudence indulges a presumption of regularity. "This places the burden on the defendants to make a specific showing of prejudice from . . . the state of mind of the grand jurors." Id., 121. These authorities strongly imply, if they do not express, that it is unnecessary to voir dire the grand jury or a grand juror in the absence of specific proof of prejudice or special circumstances.
Here the defendant merely asserts that because a grand juror was related to victims in Count Three that fact in and of itself tainted the whole proceeding. However, People v. Briggs, 50 Misc 2d 1062 states that once a grand juror is sworn and empaneled he/she cannot be challenged based on consanguinity.
Clearly the grand juror in question disclosed this relationship when it became evident. It is noted that this investigation invoked testimony about numerous incidents and individuals and Count Three is the only count which involved the relatives of the grand juror in question.
The record before the Court does not refute the proof that the grand juror in question was absent from any testimony, votes or deliberations regarding the relatives. Clearly, the Special District Attorney had the authority to excuse a grand juror regarding Count Three in the manner that he did. People v. LaDuca, 172 AD2d 1054.
The Court finds that the Special District Attorney's course of action in regard to this grand juror did not potentially prejudice the defendant. The grand juror swore an oath to act impartially. He/she did not participate in the votes regarding his/her relatives, nor hear their testimony. Furthermore, the grand jury minutes in the case at bar reveal that there was ample proof presented to support the return of an indictment and the votes for indicting on each count, including the votes in which this grand juror did participate, reflected much more than a bare majority vote. cf. People v. Fetcho, 173 Misc 2d 195.
As to Grand Juror H, the defendant alleges that H was clearly biased due to his/her misconduct while previously employed at the Seneca County Sheriff's office, during the prior sheriff's tenure and his public criticism of the sheriff's department. However, the defendant has not provided the court with proof showing that H criticized the defendant and the sheriff's department under defendant Connolly. As the People have pointed out, there is no challenge for cause regarding grand jurors, and there is a presumption that a juror who swears an oath, which this juror did, will in fact follow it. People v. Katz, 135 Misc 2d 509. "The general presumption is that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything that his official duty required to be done." Katz, at 512-513, quoting Richardson, Evidence section 71 [Prince 9th ed]. "This presumption compels the adversary to come forward with affirmative evidence of unlawful or irregular conduct. None was shown here. Defendant has failed to meet his burden." Katz, 513.
Similarly, the defendant at bar has not shown that the presence of a grand juror whose brother had been arrested for DWI by the Seneca County Sheriff's Department during the period this Grand Jury sat impaired the integrity of the Grand Jury, or that there were leaks to the press that affected the Grand Jury proceedings.
Therefore, given the foregoing, the Court finds that there was no implied or actual bias requiring dismissal of the indictment.
The motion having been granted to the extent that the Court has made an In Camera inspection of the Grand Jury minutes and, upon such reading, the Court finding them to be legally sufficient, the motion to dismiss the indictment against the defendant upon the grounds that 1) the grand jury proceeding was defective; 2) the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser included offense(s) or in the alternative, 3) the charges should be reduced is in all respects denied.
DISMISSAL OF COUNTS 6 AND 7 COUNT 6 :
Defendant argues that the allegations of Rewarding Official Misconduct in the Second Degree as charged in Count 6 of the Indictment does not support the crime charged.
Article 200 of the Penal Law defines crimes for bribery involving public servants and related offenses. In his Practice Commentary to McKinneys, Article 200, William Donnino points out that "The article is constructed by providing separate crimes for the giver and receiver of the unlawful benefit, and by providing separate crimes distinguished by their objective, i.e., (1) influencing a public servant's future conduct ("bribery" and "bride receiving"), . . . (3) rewarding a public servant's prior improper discharge of his or her duties ("rewarding official misconduct". . .) McKinney's main vol. pg 260. Emphasis added.
"As previously indicated, bribery and bribe receiving are concerned with what a public servant "will do". The crimes of rewarding, or receiving a reward for, official misconduct are directed at rewards to public servants for having previously violated their duty as a public servant. Thus, the giver of the benefit will be liable for rewarding official misconduct, and the receiver will be liable for receiving reward for official misconduct." Id. ., 262.
In People v. Stokner, 152 Misc 2d 463, The Queens City of New York Court citing Donnino, concluded that a "violation of Penal Law section 200.20 requires that the violation of public duty have already been performed." Id., 464. The facts in that case were that after defendant had double parked his car, he offered a police officer $20 to forget the summons that he was writing. The officer issued the summons, did not take the money, and arrested defendant.
Similarly, the Sixth Count of the indictment at bar speaks of future conduct, to wit: the defendant being accused of directing the deputy to locate and charge a William Morse with whatever violations of law he could, and offered to pay him overtime for doing so. It does not state that the deputy had in fact performed the requested act and the record does not reflect actual performance by the deputy.
The factual language of the count is in the future tense, and this would more closely resemble bribery. However, it should be noted that for bribery, there must be some sort of agreement between the bribe giver and the person accepting the bribe, and so this probably could not be charged either, in this case.See also New York Criminal Practice, para 70.06(3). "Thus, a conviction requires that the violation of public duty must have already been performed."
Therefore, Count Six of the Indictment is dismissed.
COUNT 7
The defendant argues that Count seven of the Indictment be dismissed due to there being an agreement between the prosecutor and the defendant that the defendant would be questioned during the Grand Jury testimony only about certain topics and that the prosecutor in fact questioned the defendant about other topics, which formed the basis of the perjury charge.
Defendant relies on CPL § 190.45(4):
"If a grand jury witness subscribes and swears to a waiver of immunity upon a written agreement with the district attorney that the interrogation will be limited to certain specified subjects, matters or areas of conduct, and if after the commencement of his testimony he is interrogated and testifies concerning another subject, matter or are of conduct not included in such written agreement, he receives immunity with respect to any further testimony, which he may give concerning such other subject, matter or area of conduct and the waiver of immunity is to that extent ineffective."
The defendant argues that such a written agreement was made, being Exhibit A attached to his Notice of Motion returnable November 29, 2007.
This document is a letter dated May 24, 2007, written by the Special District Attorney to defendant's attorney, inquiring whether defendant would agree to testify on May 20, 2007. It also listed five specific topics that "would be the subject of his testimony." This letter also stated that if defendant desires to testify "it would be necessary for him to execute a waiver of immunity before the Grand Jury."
Case law in this area is sparse. Of note, however is Professor Preiser's Commentaries to McKinney's CPL § 190.45, wherein he notes that this subdivision had been amended in 1974. He also states: "The 1974 legislation also facilitated determinations as to the scope of the waiver by changing its form from an express understanding', which involved difficulties regarding proof, to the requirement of a written agreement'." Furthermore, defendant Connolly's counsel was present with him in the grand jury room when the waiver was executed. The minutes reflect no request by counsel or defendant to attach the contents of the latter or otherwise limit the waiver of immunity actually signed.
There being no definition of "written agreement" in the Criminal Procedure Law, the Court should assign its plain meaning, which would be an agreement, in writing, signed by both parties. (Also see Statutes § 94 regarding rules of construction).
Based on the foregoing, dismissal of the Count Seven is denied.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.