Opinion
07-068.
Decided January 4, 2008.
Hon. R. Michael Tantillo, Special Seneca County District Attorney, Counsel for the People.
James McGraw, Esq., (Katy A. Karlovitz, Esq., of Counsel), Counsel for the Defendant.
Defendant, JOSHUA M. ZONA, was indicted for one count of Petit Larceny (a Class A Misdemeanor), in violation of § 155.25 of the Penal Law.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated October 12, 2007, accompanying affirmation and other supporting documents.
Upon argument of his Omnibus Motions on November 16, 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;
3. That the People turn over to the defendant as "Brady" material, any statements of those purporting to have given one Larson permission to remove items alleged to be wrongfully taken from a particular building or premises.
Based on the defendant's motion papers, the District Attorney's responding affirmation dated October 24, 2007; the Grand Jury minutes. attendance/vote/payroll records, grand juror handbook, the arguments had on October 24, 2007 and December 10, 1007, and all the submissions and 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 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, 125 AD2d 86.
The Court finds that although this special Grand Jury met numerous times from January 3, 2007 through August 22, 2007, regarding a number of defendants, the presentation of the proof in the case at bar and subsequent vote was begun and completed on January 10, 2007. Furthermore, 16 or more grand jury members were continuously present and heard all the essential and critical evidence [CPL section 190.25(1)] and more than twelve grand jurors voted to indict the defendant herein on the single count. [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 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 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 mustbe 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 required 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.
There is a distinction between exculpatory and mitigating defenses. The former is required to be charged for if believed it would avoid criminal liability entirely. Valles, supra; also see People v. Ali, 137 Misc 2d 812. However, there was no evidence presented to this grand jury indicating the existence of any affirmative defenses or other exculpatory matter requiring appropriate instructions. People v. Friedman, 116 Misc 2d 212; Ord. rev. 97 AD2d 738; People v. Ferrara, 82 Misc 2d 270.
Here the defendant argues that the grand jury should have been instructed that if this defendant honestly believed that he had permission to take the items which are the basis of the petit larceny charge that he could not be indicated because he did not possess the requisite intent under the theory of "claim of right".
Instructions on a particular defense need to be given to the Grand Jury only when it is a complete defense, and it is suggested by the evidence. People v. Valles, 62 NY2d 36. While the "claim of right" defense is a complete defense, having read the Grand Jury minutes and the instructions on the law, this Court finds that the evidence presented to the Grand Jury in this matter did not suggest a "claim of right" defense. People v. Rosenbaum, 107 Misc.2d 501. Therefore, the Court will not dismiss the Petit Larceny charge against this defendant.
Penal Law § 155.05(1) defines Larceny as follows:
"A person steals property and commits larceny when, with intent to deprive another of property, or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
The common law "claim of right" defense concerns the definition of "owner". The "owner" is defined in the Penal Law as: "When the property is taken, obtained or withheld by one person from another, an "owner" thereof means any person who has a right to possession thereof superior to that of the taker, obtainer or withholder." Thus, if the defendant is the "owner" in relation to the person that he takes from, then he has not committed larceny, he is merely retrieving the thing that was taken from him. Such an action is considered a permissible form of self help. People v. Chang, 12 Misc.3d 134 (A).
Here, the person that this defendant allegedly took the property from was essentially, the People of Seneca County. The facts as developed in the Grand Jury presentment, when viewed in the light most favorable to the defendant, do not support the conclusion that Mr. Zona had a claim of right to the tires. They were never his to claim, despite anything that the undersheriff, or anyone else might have told him.
In People v. Green , 5 NY3d 538 , the Court of Appeals explained the claim of right defense as "[A] good-faith claim that the chattel belonged to the taker, would, if believed by the jury, negate the element of larcenous intent." Id., 544. While Green is a robbery case, and the Court again rejected the argument that a claim of right defense may be available in a robbery case, the case is instructive on the issue of when a claim of right defense is available to a defendant in a larceny case.
Defendant cites People v. Samuels , 12 AD3d 695 , where a conviction was overturned by the Second Department for the People's failure to charge the Grand Jury with the justification defense in an assault case. There, defendant in an altercation with her former husband blinded him when a cup of acid was taken by the ex husband from a shelf and the contents spilled on both of them during the struggle. In reviewing the evidence in the light most favorable to the defendant, the Court concluded that such a view supported the defense. In contrast here, however, Mr. Zona's prior relationship with the tires that he took from the storage building does not provide him with a claim of right.
Grand Juror
Defense counsel states that one of the grand jurors is related, by either affinity or consanguinity, to two victims in other indictments not related to this defendant or the case at bar. Therefore, the proceedings before the Grand Jury have been impaired requiring dismissal of the Indictment. 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.
The District Attorney submitted an affidavit by the grand juror in question which indicates that the grand juror did advise the district attorney of this relationship once it became apparent that his/her relatives would be possible witnesses before the grand jury. The Court finds that this relationship only came to light at a session after January 10, 2007.
In any event, after careful review of the grand jury minutes, the Court's instructions, vote/attendance/payroll sheets and grand juror handbook this issue is moot as the grand juror in question heard no proof or voted on January 10, 2007 as he/she was absent.
Therefore, 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 other documents, 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) is in all respects denied.
Brady
As to whether or not any statements made by any individual that one Larson gave permission to defendant Zona to take items from the warehouse is so called " Brady" ( Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L ed 2d 215) material, the Court finds that while the evidence before the Grand Jury did not warrant a charge of "claim of right", the spirit of " Brady" is to turn over to the defense any material that might be exculpatory. It is up to defense counsel, not the court or the People, to weigh and review such evidence regarding his defense. Therefore, any such material is to be provided to defense counsel within seven (7) days of the date of this Order.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.