Opinion
1160 KA 15–00794
12-22-2017
The PEOPLE of the State of New York, Appellant, v. Scott E. BLAUVELT, Kyle C. Norcross, Defendants–Respondents, et al., Defendant.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR APPELLANT. ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–RESPONDENT SCOTT E. BLAUVELT. GREEN & BRENNECK, SYRACUSE (SCOTT A. BRENNECK OF COUNSEL), FOR DEFENDANT–RESPONDENT KYLE C. NORCROSS.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–RESPONDENT SCOTT E. BLAUVELT.
GREEN & BRENNECK, SYRACUSE (SCOTT A. BRENNECK OF COUNSEL), FOR DEFENDANT–RESPONDENT KYLE C. NORCROSS.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
In this prosecution arising from an altercation that allegedly resulted in serious physical injury to one person (hereafter, victim) and damage to another person's vehicle, the People obtained an indictment charging defendants Scott E. Blauvelt and Kyle C. Norcross with gang assault in the second degree ( Penal Law § 120.06 ), charging Blauvelt with criminal mischief in the third degree (§ 145.05[2] ), and charging Norcross and a third defendant with criminal mischief in the fourth degree (§ 145.00[3] ). County Court granted defendants' motions to dismiss the indictment, concluding in relevant part that there was legally insufficient evidence of serious physical injury to support the gang assault counts and that the conduct of the prosecutor impaired the integrity of the grand jury proceeding. The People appeal with respect to Blauvelt and Norcross. At the outset, we decline to grant Blauvelt's request that we exercise our discretion to dismiss the People's appeal based on their delay in perfecting it (see CPL 470.60[1] ; cf. People v. Calaff, 103 A.D.3d 500, 500, 959 N.Y.S.2d 427 [1st Dept. 2013], aff'd 23 N.Y.3d 89, 101, 989 N.Y.S.2d 418, 12 N.E.3d 416 [2014], cert. denied ––– U.S. ––––, 135 S.Ct. 273, 135 S.Ct. 273 [2014] ). We also note that, on this appeal by the People, we have no authority to consider the alternative ground for affirmance raised by Blauvelt in his brief, which does not involve an error or defect that "may have adversely affected the appellant" ( CPL 470.15[1] ; see People v. Karp, 76 N.Y.2d 1006, 1008–1009, 565 N.Y.S.2d 751, 566 N.E.2d 1156 [1990] ; People v. Woodruff, 4 A.D.3d 770, 773, 771 N.Y.S.2d 620 [4th Dept. 2004] ).
We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to "readily apparent external physical injuries of which he obviously [had] personal knowledge" ( People v. Brandon, 102 A.D.2d 832, 833, 476 N.Y.S.2d 370 [2d Dept. 1984] ), and his testimony concerning the leg injury he sustained in the altercation, i.e., that the injury required surgery, that he took narcotic pain medication for two months, and that he was still using a crutch and experiencing pain and range of motion limitations at the time of the grand jury proceeding more than seven months after the incident, was sufficient to establish a protracted impairment of health and a protracted impairment of the function of his leg (see Penal Law § 10.00[10] ; People v. Heyliger, 126 A.D.3d 1117, 1119, 5 N.Y.S.3d 566 [3d Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Pittman, 253 A.D.2d 694, 694, 679 N.Y.S.2d 101 [1st Dept. 1998], lv denied 92 N.Y.2d 1052, 685 N.Y.S.2d 430, 708 N.E.2d 187 [1999] ; People v. Garcia, 202 A.D.2d 189, 190, 608 N.Y.S.2d 425 [1st Dept. 1994], lv denied 83 N.Y.2d 1003, 616 N.Y.S.2d 485, 640 N.E.2d 153 [1994] ; see generally People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585 [4th Dept. 2009], lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ).
We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired (see People v. Thompson, 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rear'g denied 23 NY3d 948, 987 N.Y.S.2d 601, 10 N.E.3d 1157 [2014] ; see generally CPL 210.20[1][c] ; 210.35[5]; People v. Huston, 88 N.Y.2d 400, 408–409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). The prosecutor acted improperly in repeatedly asking leading questions of his witnesses (see generally People v. Ballerstein, 52 A.D.3d 1192, 1194, 860 N.Y.S.2d 718 [4th Dept. 2008] ; People v. Bhupsingh, 297 A.D.2d 386, 387–388, 746 N.Y.S.2d 490 [2d Dept. 2002] ), and in introducing hearsay evidence (see Huston, 88 N.Y.2d at 406–407, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; People v. Pelchat, 62 N.Y.2d 97, 106, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984] ; People v. Gordon, 101 A.D.3d 1473, 1474–1476, 956 N.Y.S.2d 674 [3d Dept. 2012] ). During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying (see People v. Washington, 89 A.D.3d 1516, 1517, 933 N.Y.S.2d 499 [4th Dept. 2011], lv denied 18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012] ), and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general (see generally People v. De Vito, 21 A.D.3d 696, 700–701, 800 N.Y.S.2d 250 [3d Dept. 2005] ; People v. Ramos, 139 A.D.2d 775, 776–777, 527 N.Y.S.2d 521 [2d Dept. 1988], appeal dismissed 73 N.Y.2d 866, 537 N.Y.S.2d 485, 534 N.E.2d 323 [1989] ). "Most egregiously," as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim's injuries must have resulted from "a substantial beating" (see Huston, 88 N.Y.2d at 407–408, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; see generally People v. Batashure, 75 N.Y.2d 306, 307–308, 552 N.Y.S.2d 896, 552 N.E.2d 144 [1990] ; People v. Paperno, 54 N.Y.2d 294, 300–301, 445 N.Y.S.2d 119, 429 N.E.2d 797 [1981] ). We remind the People that a prosecutor owes "a duty of fair dealing to the accused" at a grand jury proceeding and, more generally, that a prosecutor "serves a dual role as advocate and public officer," and must "not only ... seek convictions but [must] also ... see that justice is done" ( Pelchat, 62 N.Y.2d at 105, 476 N.Y.S.2d 79, 464 N.E.2d 447 ; see Thompson, 22 NY3d at 697–698, 985 N.Y.S.2d 428, 8 N.E.3d 803 ; People v. Santorelli, 95 N.Y.2d 412, 420–421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000] ; People v. Mott, 94 A.D.2d 415, 418, 465 N.Y.S.2d 307 [4th Dept. 1983] ).
Although we thus conclude that the indictment was properly dismissed, we further conclude, in the exercise of our discretion, that the People should be granted leave to resubmit the charges to another grand jury (see CPL 210.20[4] ; People v. Loomis, 70 A.D.3d 1199, 1201–1202, 896 N.Y.S.2d 208 [3d Dept. 2010] ; see also Huston, 88 N.Y.2d at 411, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; People v. Barabash, 18 A.D.3d 474, 474, 795 N.Y.S.2d 257 [2d Dept. 2005] ), and we modify the order accordingly. We note that the prosecutor has offered to recuse himself and seek the appointment of a special prosecutor to handle the resubmission.
It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice by granting the People leave to re-present the charges to another grand jury and as modified the order is affirmed.