Opinion
Indictment No. 0955-2021
01-31-2022
The People of the State of New York, Plaintiff, v. Travier Barrett, Defendant.
The People by: Assistant District Attorney Elizabeth Van Buskirk Queens County District Attorney's Office The Defendant by: Jeffrey A. Chabrowe, Esq.
Unpublished Opinion
The People by: Assistant District Attorney Elizabeth Van Buskirk Queens County District Attorney's Office
The Defendant by: Jeffrey A. Chabrowe, Esq.
Gary F. Miret, J.
The defendant, Travier Barrett, has submitted an omnibus motion, dated November 28, 2021, seeking: bill of particulars; inspection of the grand jury minutes and dismissal or reduction of the indictment; suppression of evidence; Sandoval relief; and leave to file further motions. The People's response, dated December 20, 2021, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.
INSPECTION AND DISMISSAL OR REDUCTION
The defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. Upon inspection of the grand jury minutes and the exhibit, this court found the evidence to be legally sufficient to support both counts of the indictment and the instructions were not defective as a matter of law.
The defendant's motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their supplemental certificate of compliance dated August 17, 2021. Otherwise, the defendant's motion is denied because the release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant's motion to reduce or dismiss the indictment.
However, over the course of the grand jury presentation, inadmissible hearsay evidence not subject to any exception was presented to the grand jury. In general, defects in a grand jury presentation require dismissal where "the integrity of the Grand Jury proceeding is impaired 'and prejudice to the defendant may result.'" (People v Huston, 88 N.Y.2d 400, 402 [1996] [quoting CPL § 210.35[5]].) Here, this court concludes that the introduction of inadmissible hearsay impaired the integrity of the proceeding, with the result that it was highly likely that the defendant was prejudiced as a result. (See CPL § 210.35[5].)
Police Officer Michael Procida testified before the grand jury about the events he witnessed when he and his partner responded to a radio run they received at about 4 a.m. on June 6, 2021. Officer Procida said the radio run involved a dispute with a firearm at a single-family residence located at 133-22 149th Street. (tr 4-5) The prosecutor then asked if any additional information regarding the radio run was received. Officer Procida said "The radio run it described a male, black, 25 to 30 years old, wearing a white T-shirt, blue shorts, having cornrows." (tr 4)
Upon arriving at the location, he and his partner walked down the driveway to the backyard where they met a group of two to three people who were standing in the backyard near the end of the driveway. As Officer Procida was talking to the group of people, he saw the defendant, a black male wearing a white T-shirt, in the backyard. Officer Procida saw the defendant walk toward a side of the house where an air conditioning unit was located, about 25 to 30 feet away from him. He then saw the defendant bend over for about a second and place something on the ground. (tr 7) The defendant then walked toward where Officer Procida and the group of people were standing. As the defendant got closer, Officer Procida got a better look at the defendant and further described him as having cornrows and that he appeared to be 25 to 30 years old. The prosecutor then asked Officer Procida whether, in his opinion, the defendant matched the description that had been provided in the radio run. (tr 8) Officer Procide said, in his opinion he did. (tr 8) Officer Procida then walked over to area where he had seen the defendant bend over and recovered a silver revolver loaded with ammunition. (tr 9)
At the end of his testimony, a juror asked the prosecutor whether Officer Procida questioned anyone else at the party about the dispute with a firearm. (tr 14) The prosecutor then put the question to Officer Procida. Officer Procida answered by asking "What do you mean by questioned?" (tr 14) Instead of asking if he spoke to anyone else, the prosecutor asked "What more, specifically, did the radio run say?" (tr 14) Officer Procida said "The radio run said there was a party-birthday party at the location and that there was a male black with cornrows wearing a white shirt, blue shorts waving a firearm around." (tr 14)
First, it was error for the prosecutor to ask Officer Procida's lay opinion whether the initial description given in the radio run matched the defendant. There is no reason to believe that Officer Procida was more likely than the grand jury to correctly determine whether the defendant matched the description in the radio run. The prosecutor then coupled the response to the question, "What more did the radio run say?",-that a person "waving a firearm around", to Officer Procida's opinion, that the defendant matched the defendant. Although hearsay defects do not always impair the integrity of the grand jury proceedings, this defect was of great significance, because this testimony identifying the defendant with the firearm was the only direct evidence linking the defendant to the possession of the firearm. Moreover, this testimony, not only was not responsive to the juror's question, but was not used for any non-hearsay purpose, such as to explain the officer's investigative actions. Instead, it was used for its truth-namely to establish that Travier Barrett and the person described in the radio run were one in the same. Further, this evidence was highly prejudicial because it created the risk that the grand jurors would believe that some unknown person identified the defendant as the person with the firearm. Essentially, this amounts to the suggestion that an identification was made by some anonymous person. Moreover, this testimony improperly bolstered the circumstantial evidence case that Officer Procida's testimony established.
Opinion testimony from a lay witness is admissible where (1) it "is rationally based on the witness's perception;" (2) it is within the ambit of common experience or that of a particular witness;" (3) it "would be helpful to the factfinder in understanding the witness's testimony or in determining a fact in issue, especially when the facts cannot be stated or described in a manner as to enable the finder of fact to form an accurate judgment about the subject matter or of the opinion or inference." (Guide to NY Evid Rule 7.03, Opinion of Lay Witness.)
Although hearsay defects do not always impair the integrity of the grand jury proceedings, these defects were of great significance, because the only legally admissible evidence presented to the grand juror that established the defendant's guilt was circumstantial. (See People v Barabash, 18 A.D.3d 474 [2d Dept 2005])
The cumulative effect of these errors was such that it impaired the integrity of the grand jury proceedings likely prejudiced the defendant.
For all of these reasons, the defendant's motion to dismiss the indictment is granted with leave for the People to re-present within thirty days. In light of this determination, the court need not address the defendant's remaining claims.
ORDER TO COUNSEL
This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:
To the Prosecutor:
The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 U.S. 83 (1963), Giglio v United States, 405 U.S. 150 (1972), People v Geaslen, 54 N.Y.2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.
• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.
• Favorable information could include, but is not limited to:
a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.
b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.
c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.
d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.
e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.
• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.
• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).
• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.
• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.
• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.
To Defense Counsel:
Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:
a) Confer with the client about the case and keep the client informed about all significant developments in the case;
b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;
c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 U.S. 356 (2010);
d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;
e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;
f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and
g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.
LEAVE TO FILE FURTHER MOTIONS
The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL § 255.20(3).
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.