Opinion
INDICTMENT NO. 10553/12
04-19-2013
THE PEOPLE OF THE STATE OF NEW YORK, v. ADRIAN TURNER, Defendant.
Present: DECISION AND ORDER
Defendant moves to dismiss the Indictment pursuant to CPL §§210.20(1)(c), 210.35(4) and 190.75(3), claiming the Grand Jury proceedings herein are defective due to the People's improper resubmission of a charge previously dismissed by the same Grand Jury. After a review of the moving papers, the People's opposition, the pertinent Supreme Court file and relevant statutory and caselaw authority, defendant's motion is denied.
In summary, on December 14, 2012, following the presentation of evidence before the Grand Jury, including the testimony of defendant, who denied possessing the loaded firearm recovered by the police from inside the radiator defendant was standing near/next to within a New York City Housing Authority Building, the sole charge of Criminal Possession of a Weapon in the Second Degree [PL §265.03(3)] was submitted to the Grand Jury for its consideration. Significantly, the Grand Jury heard that as the arresting officer was shutting off and securing one of the three cell phones recovered from defendant as part of the arrest and evidence vouchering process, the officer noticed a photograph of a firearm on the phone's viewing screen; defendant denied any knowledge of photographs of a firearm contained on his cell phone. This charge was dismissed by the Grand Jury on December 14, 2012. Subsequently, the People moved, ex parte, for permission from the Court (Baiter, J.) to resubmit the charge of Criminal Possession of a Weapon in the Second Degree, which was then done before the same Grand Jury on December 21, 2012. There is no dispute that at this second presentation, additional testimonial as well as photographic evidence was proffered by the People, apparently obtained through the execution of a search warrant for the contents of defendant's cell phone, which the People affirm, inter alia, depicts the same firearm recovered from the radiator by the police, i.e., the serial number on the firearm in the photograph is the same serial number as on the recovered firearm.
The propriety of the issuance or execution of any search warrant, or of the recovery of any physical or other evidence, are not issues before the Court and are therefore not the subject of this Court's review in relation to the instant application.
Insofar as there has been no explanation given regarding why the instant motion, challenging the ex parte prior order rendered by a court of coordinate jurisdiction, was not brought before Justice Baiter for determination, this Court, although not constrained to do so, does not pass upon the legal basis for which resubmission was permitted, and, in the exercise of judicial discretion, declines to disturb such prior court order. See, generally, People v. Evans, 94 NY2d 499 (2000); People v. Dykes, 86 AD2d 191 (2nd Dept. 1982); compare, People v. Ladsen, 111 Misc2d 374 (S. Ct. N.Y. Co. 1981); but see also, People v. Guerra, 65 NY2d 60 (1985).
Moreover, based upon the facts and circumstances presented, resubmission of the disputed charge does not appear improper, as defendant has failed to demonstrate the prior determination permitting resubmission was faulty in any way. Here, leave had been sought, and granted, to resubmit the disputed charge, and there has been absolutely no substantiation of an abuse of discretion in granting such leave. Indeed, despite professing a lack of knowledge with regard to the specifics of Justice Baiter's decision and of what that Court had considered in reaching its conclusion, defendant contends these very specifics were not sufficient, i.e., "the People failed to set forth a proper factual predicate upon which a court considering the People's motion can properly be said to have exercised due judicial discretion" in reaching its conclusion. Thus, defendant's contention -- which the People pointedly refute -- is seemingly without foundation, and as such, does not supply the essential facts and information necessary for this Court to make an informed and well-reasoned determination.
Although the People affirm as to the information presented to Justice Baiter in support of their application for leave pursuant to CPL § 190.75(3), and defense counsel is apparently aware of the nature of at least some of said information, neither that application nor the resultant court order was submitted on the instant motion.
To the extent that defendant's motion may be read as arguing for dismissal on the basis that the resubmission itself was deficient, such argument also fails. This Court has reviewed all the minutes of the presentation in this case, occurring on December 13, 14 and 21, 2012 before the same Grand Jury, and it would appear the quality and nature of the evidence presented upon resubmission was not substantially the same as upon initial submission, and presumably the People did present the additional evidence as was promised in their application for permission to resubmit, although it must be noted that while the People are not limited in seeking resubmission upon the basis of new or additional evidence, the precise ground(s) urged in support of such application and approved by Justice Butler are not known at this time with any degree of certainty. Upon this record, the Court sees no sound basis for dismissal of the Indictment. See, People v. Dykes, supra; People v. Martin, 71 AD2d 928 (2nd Dept. 1979); compare, People v. Fantucci, 157 Misc2d 443 (S. Ct. Kings Co. 1993).
These Grand Jury minutes were separately submitted by the People to the Court for an in camera inspection, which is the subject of a separate Decision and Order dated April 19, 2013. --------
Finally, with regard to that branch of the instant motion wherein defendant claims his CPL §190.50 right to testify before the Grand Jury was violated upon resubmission of the disputed charge but without notice thereof by the People, the Court notes that defendant's right to testify before the Grand Jury, exercised by defendant one week prior to resubmission to the same Grand Jury and during which defendant gave his complete, uninterrupted account of the events which led to his arrest, has not, in the Court's opinion, been abrogated in this particular instance. See, generally, People v. Smith, 84 NY2d 998 (1994); cf. People v. Ladsen, supra; compare, People v. Greco, 230 AD2d 23 (4th Dept.), lv denied, 90 NY2d 940 (1997);
The Court has reviewed the defendant's remaining arguments and finds them to be without merit.
Accordingly, it is hereby
ORDERED, that defendant's motion for dismissal of the instant Indictment is denied. Dated: April 19, 2013
ENTER
/s/_________
ELIZABETH A. FOLEY, J.S.C.