Opinion
No. 14–068.
10-13-2015
PEOPLE of the State of New York, v. Stacy POST, Defendant.
John R. Sandleitner, Esq., Special Prosecutor, Tannersville, for People. Dennis B. Schlenker, Esq., Albany, for Defendant.
John R. Sandleitner, Esq., Special Prosecutor, Tannersville, for People.
Dennis B. Schlenker, Esq., Albany, for Defendant.
RICHARD L. MOTT, J.
The indictment charges Defendant, former Windham town supervisor, with multiple counts of Eavesdropping within her office, in violation of P.L. § 250.05, a class E felony and Official Misconduct in connection with the firing of her secretary in contravention of P .L. 195.00, a class A misdemeanor.
Defendant moves, inter alia, to inspect the grand jury minutes and dismiss the indictment asserting deficiencies in the proof adduced and impairment of the integrity of the grand jury proceedings. C.P.L. §§ 210.20(1)(a), (b) and (c) ; 210.35(5). Further, Defendant asserts the unconstitutionality of the eavesdropping charges as applied, P.L. § 250.05; C.P.L. §§ 210.20(1)(a) ; 210.25(3) and requests the release of the grand jury minutes to afford her the opportunity to effectively argue for the dismissal of the indictment. The Special Prosecutor, (hereinafter, "SP"), consents to the Court's inspection of the grand jury minutes but opposes release thereof, and otherwise opposes the relief sought.
Defective Grand Jury Proceedings
Dismissal of an indictment due to the impairment of grand jury proceedings is a drastic remedy and will be granted only in exceptional circumstances. People v. Darby, 75 NY2D 449 [1990] ; People v. Huston, 88 N.Y.2d 400 [1996]. Moreover, "not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective." People v. Miller, 110 AD3d 1150 (3d Dept.2013), citing People v. Huston, supra. However, "[i]n rare cases where the improprieties rise to the level of impairing the proceedings and creating a likelihood or real potential for prejudice, dismissal is required notwithstanding the sufficiency of the evidence." People v. Moffitt, 20 AD3d 687, 688–689 (3d Dept.2005), citing People v. Huston, 88 N.Y.2d at 410 ; People v. Calbud, Inc., 49 N.Y.2d 389, 395 [1980] ; People v. Thompson, 22 NY3d 687, 704 [2014] rearg. denied, 23 NY3d 948 [2014] (the legal sufficiency of the evidence supporting an indictment, standing alone, does not automatically immunize the indictment from dismissal). "The likelihood of prejudice turns on the particular facts of [the] case, including the weight and nature of the admissible proof adduced [ ] and the degree of inappropriate prosecutorial influence or bias." People v. Huston, 88 N.Y.2d 400, 409 [1996]. Thus, where witnesses are permitted to improperly offer their opinions on matters central to the jurors' determination, cf. People v. Harris, 15 Misc.3d 994 [NY County 2007] (witness opinion on a party's intent) with People v. Fernandez, 264 A.D.2d 661 [1st Dept.1999] (claim of impropriety speculative as it related to a collateral matter), such as the legal sufficiency of the evidence, prejudice is sufficiently likely to warrant dismissal. People v. Batashure, 75 N.Y.2d 306, 310–12 [1990].
Here, the SP usurped the deliberative role of the grand jurors by soliciting witness opinion concerning the legality of Defendant's conduct that provoked responses referencing witness consultation with outside legal sources in support thereof. Moreover, the SP repeatedly invited witnesses to state whether they had privacy expectations in the supervisor's office and if those expectations had been violated. In both instances, such opinions were presented as if fact. People v. Bailey, 58 N.Y.2d 272 [1983].
In addition, the SP improperly appealed to juror emotion by insisting time and again that witnesses express how Defendant's conduct affected them, specifically querying whether they felt "violated" thereby. Indeed, when two witnesses claimed no negative consequence or were friends of Defendant they gratuitously were questioned as to their verisimilitude. In another instance, a witness inexplicably was asked whether she/he feared Defendant, thereby eliciting a response that impugned Defendant's character. Furthermore, after eliciting a plethora of opinion, the record reflects a sole offhand admonition to jurors by the SP following a witness' reflection on the subjective nature of her/his own comments.
Here, the invocation of witness and outside legal opinion People v. Batashure, 75 N.Y.2d 306, combined with the unabated, repeated elicitation of witness opinion regarding privacy, emotional concerns and Defendant's character, all in evident appeals to juror sympathy, improperly distorted the proceedings, thereby creating a real potential for prejudice regarding their role in determining whether or not to return an indictment. See, e.g., People v. Caracciola, 78 N.Y.2d 1021, 1022 [1991] (instructions were too confusing to have been understood by the Grand Jury in considering charges); People v. Malan–Pomaeyna, 72 AD3d 988, 988 [2d Dept.2010] (substantial misleading instructions may fairly be said to impair integrity of the grand jury); cf. People v. Adessa, 89 N.Y.2d 677 [1997] (no particularized harm in dual presentation of citizen-police cross complaints) with People v. Pelchat 62 N.Y.2d 97, 106 (1984) (duty of fair dealing may be violated by the admission of hearsay which the grand jury may not have understood as such). Thus, not only did these improprieties permeate the proceedings, thereby overcoming any presumption of regularity, see, People v. Nash, 69 AD3d 1113, 1114 [3d Dept.2010] ; CPL § 210.25, they effectively usurped the sole province of the grand jurors. People v. Batashure, 75 N.Y.2d 306 ; People v. Huston, 88 N.Y.2d 400.
Accordingly, the indictment is dismissed as defective, with leave to re-present. In view of this determination all other applications for relief are academic.
SO ORDERED.