Opinion
09-061.
Decided March 16, 2010.
Hon. R. Michael Tantillo, Special Seneca County District Attorney, Counsel for the People, Napier Napier, (Robert A. Napier, Esq., counsel), Counsel for the Defendant.
Defendant, LEO T. CONNOLLY, was indicted for two counts of Official Misconduct, in violation of Penal Law § 195.00(1). He now moves for assorted forms of relief more specifically addressed herein and as referenced in the Notice of Motion and attorney's affidavit sworn to November 25, 2009.
All elements of the said Omnibus Motion were heard on the presentations made on December 17, 2009 and the Court reserved decision giving counsel an opportunity to make any further submissions in support of their respective positions.
A Inspection of Grand Jury Minutes
A motion to inspect the Grand Jury minutes is a request by the defendant for the Court to examine the stenographic minutes of the Grand Jury proceeding for the purpose of determining whether the evidence before the Grand Jury was legally sufficient to establish the offenses charged, any lessor offense or in the alternative, for reduction (CPL sections 210.20(1)(b), 210.30 (1), (2) and (4b); Miranda v. Isseks, 41 AD2d 176 [2nd Dept 1973]). Defendant's motion for the Court's in camera inspection of the Grand Jury minutes was granted. Defendant also requests that the Court release the Minutes of the Grand Jury proceedings to the defendant for independent review.
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)] "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, "Reasonable cause to believe that a person had 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 reasonable likely that such offense was committed and that such person committed it.
The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary. ( People v. Glen, 173 NY 395).
The motion having been granted to the extent that the Court has made an in camera inspection of the Grand Jury minutes and, upon such reading, the Court finding them to be legally sufficient, the motion to dismiss the indictment against the defendant upon the ground that the evidence before the Grand Jury was not legally sufficient to establish the offense(s) charged, any lessor offense(s) or reduction is in all respects denied. And the defendant's request to examine the Grand Jury minutes is also denied as the Court finds that since the defendant has not established a compelling and particularized need for same, disclosure of them would be inappropriate. See People v. Shakiya Robinson and Bruce Jamsen, 98 NY2d 755 (2002).
B Impairment of Integrity of the Grand Jury
Defendant claims that the People violated CPL §§ 190.60 and 190.85(2)(b) in that Grand Jury Report No. 8 dated August 22, 2007 and filed by the Seneca County Special Grand Jury January, 2007 Term alleged misconduct and proposed recommendations for administrative action which noted acts of misconduct that are mirrored in Indictment No. 09-061. Therefore, the filing of Indictment #09-061 was in violation of CPL § 190.85 even though it is a separate instrument brought by a new Grand Jury, not the Grand Jury which filed Report No. 8.
The purpose of CPL § 190.85 and the explanation of the danger of publishing Grand Jury reports is clearly set forth in Wood v. Hughes, 9 NY2d 144, 212 (1961) and In re Second Report of November 1968, Grand Jury of Erie County, 1970, 26 NY2d 200 (1970). In short, the statute is designed to insure that an accused has the benefit of the constitutional protections accorded one who is charged for crimes by indictment.
Here, the defendant was charged with, among other things, official misconduct under Indictment #07-066 and asserts he was also subject to Grand Jury Report No. 8 with Judge Dennis Bender ordering acceptance of same on October 31, 2007. The present indictment again charges the defendant with two counts of official misconduct for the same conduct alleged in Indictment #07-066.
The question before this Court is whether or not it should dismiss the present indictment because Grand Jury Report No. 8 may have violated CPL § 190.85.
There is a paucity of case law on this point. However, the Court notes People v. Levy, 41 AD2d 948 (2d Dept 1973) as instructive.
In Levy, a single Grand Jury issued both a report under CPL § 190.85 and an Indictment contemporaneously. In the case at bar, there were two separate and distinct Grand Juries, the first issued the August 22, 2007 report, and the second, handed up Indictment No. 09-061, following appeal wherein the Fourth Department specifically allowed for the re-presentment of the two charges that are the subject of the instant proceeding. People v. Connolly , 63 AD3d 1703 , 1705 (4th Dept 2009). Therefore, the case at bar is not on all fours with Levy in that the Grand Jury that issued the instant indictment was not tainted in any way, nor did it issue any reports.
This defendant has already been through a public trial on Indictment #07-066 and so the harm that the safe guards of CPL § 190.85 are designed to prevent, that is, the lack of opportunity for an identifiable public officer to be able to defend himself against a published Grand Jury report where there is no indictment, has in a sense, already been rectified. Indeed, with a new trial, the defendant has a further opportunity to defend himself and take advantage of the constitutional safeguards that are the foundation of our criminal justice system, against the charges which are referenced in the Report No. 8.
Defendant also claims that the integrity of the current Grand Jury has been impaired because the earlier Grand Jury proceedings were "tainted" due to its illegal composition, the release of Grand Jury Report No. 8 and apparent representations by the Special District Attorney during the proceedings of the first Grand Jury. These arguments all relate to the proceedings under Indictment #07-066 and are not germane to the proceedings currently before the Court.
This Court notes that although the Appellate Division dismissed Indictment No. 07-066 it did so "without prejudice to the People to re-present any appropriate charges under counts three and five of the indictment to another grand jury." Connolly at 1705.
Therefore, the defendant's arguments herein are without merit and the request for dismissal on these grounds are in all respects denied.
C Speedy Trial
The defendant argues that the Indictment must be dismissed as untimely pursuant to CPL § 30.30.
In order to determine this issue the Court has reviewed the procedural history of the current matter.
First, what is the date of commencement of the present action?
The date of the Fourth Department's decision ( Connolly at 1703) and order reversing the conviction and granting the People leave to re-present was entered on June 12, 2009. This is the date of commencement. See CPL § 30.30(5)(a): "For purposes of this section (a), where the defendant is to be tried following . . . an order for a new trial or an appeal . . . the criminal action. . . . must be deemed to have commenced on the date. . . . the order occasioning a retrial becomes final." See People v Holmes, 105 AD2d 803, 804 (2nd Dept 1984); People v Passero, 96 AD2d 721 (4th Dept 1983).
Having determined the date of commencement as June 12, 2009, do the People have six months or ninety days in which to announce ready?
The Court determines that in this case the People have ninety days to announce ready. See CPL § 30.30(1)(a) and (b).
The People argue that the six month limitation applies, because, even though the current indictment charges only misdemeanors, the first indictment included felony charges, and since there can only be one criminal action for each set of criminal charges brought against a defendant, and only one date marking commencement, the first accusatory instrument here with its felony charges affords the People six months to announce ready under CPL § 30.30(1)(a). The People cite People v Lomax, 50 NY2d 351 (1980), People v Sinistaj, 67 NY2d 236 (1986), People v Dearstyne, 215 AD2d 864 (3rd Dept 1995), People v Bello , 24 AD3d 236 (1st Dept 2005) and People v Marsh, 127 AD2d 945 (3rd Dept 1987) for this proposition. In each of these cases, the court ruled that the action is deemed commenced as of the filing of the first accusatory instrument. However, each of these cases is distinguishable from the present case because none of them involved a new trial occasioned by a reversal on appeal. Thus, here CPL § 30.30(5)(a), applies. The People's cases all involve multiple accusatory instruments, all dealt with at the trial court level, and thus, were not subject to CPL § 30.30(5)(a).
The plain language of CPL § 30.30 leads to the conclusion that the ninety day period applies here. Note that CPL § 30.30(5)(a) dictates that commencement of an action is deemed to be the date the order occasioning a retrial becomes final. CPL § 30.30(1)(a) and (b) then dictates the six month or ninety day time period from commencement of such a criminal action wherein a defendant is accused of one or more offenses, of which at least one is a felony (or misdemeanor).Here, there is no relating back, as provided for in the People's cited authority. Nor, do any of the provisions of CPL § 30.30(5)(b) through (f) apply. We simply have the fresh indictment, with only misdemeanor charges, for an action commenced on June 12, 2009, bringing into play CPL § 30.30(1)(b)'s ninety day requirement for announcement of readiness.
Was the September 10, 2009 announcement by the Special District Attorney sufficient when it was made before arraignment of the defendant, which did not occur until September 24, 2009?
In this regard, September 10, 2009, marked the ninetieth day from the June 12, 2009 commencement. On that day, the prosecutor faxed to defense counsel a letter stating that the indictment was being filed that day, and that "the People are ready for trial in this matter." (Defendant's Exhibit J). On that day, the sealed indictment was filed with the County Clerk, and a copy was received by the Seneca County Court Clerk. On September 11, 2009, the Court Clerk issued a Notice to Appear, which was faxed to both attorneys that day, notifying them of the September 24, 2009 arraignment.
This scenario brings into play People v England, 84 NY2d 1 (1994) and its progeny. A defendant cannot be brought to trial before arraignment, since this is required for the court to acquire jurisdiction over the defendant. CPL § 1.20(9); England at 4. In People v Goss, 87 NY2d 792 (1996), the Court of Appeals noted that "England did not alter the principle that the People can be ready to proceed to trail prior to the defendant's arraignment. England, rather, carved out a single exception-a declaration of readiness prior to arraignment is illusory in the 'unusual circumstances' where arraignment within the statutory time period is impossible and that impossibility is attributable solely to the People." Goss at 796-797.
In Goss, the court concluded that a statement of readiness 5 or 6 days before the six month period for felony indictments lapsed, was sufficient, because the defendant could have been arraigned within the statutory period. And, any delay in scheduling the arraignment after the announcement of readiness was not attributable to the People, since it was the Court's responsibility to schedule the arraignments.
However, here, as in England, the arraignment was not possible within the statutory period (here, 90 days). Thus, the September 10, 2009 announcement was not a sufficient statement of readiness, unless there is excludable time.
The Court must then determine if there was any delay prior to arraignment, that is not attributable to the People. The People argue that there is excludable time, under CPL § 30.30(4)(a), due to each counsel's correspondence with the Court and the Court's responding correspondence during the period of June 15, 2009 to July 14, 2009. In his Commentaries to Mc Kinneys CPL § 30.30, Peter Preiser notes that a problem in application of the exclusions in subdivision 4 is "whether the particular circumstance asserted as justification for exclusion of time must actually have caused the delay." Main Vol. pg. 213. He concludes that "the People will be credited with the exclusion if the step that was put aside would have entailed expenditure of court or grand jury time or inconvenience to witnesses under the circumstances where proceedings might well turn out to have been wasteful or futile." Id.
Here, the correspondence between defense counsel, Judge Bender and the Special District Attorney after June 15, 2009, was critical to a determination of how the People would proceed. After the Fourth Department ruling, the Special District Attorney by letter to Judge Bender asked if he had authority to re-present. Judge Bender, by correspondence, stated that he did have such authority. Defense counsel then questioned this conclusion by correspondence, and eventually, by letter of Judge Bender dated July 14, 2009, the Court concluded that the Special District Attorney could proceed.
Certainly these matters affected the ability of the People to re-present, and this Court concludes that these matters were "proceedings" that concerned the defendant and resulted in a delay, within the meaning of CPL § 30.30(4)(a). Thus, the period of time from June 15, 2009 to July 14, 2009, a total of 29 days, is excludable for speedy trial purposes. Thus, the announcement of ready, whether on September 10, 2009, or September 24, 2009 was timely, and the defendant's motion to dismiss under CPL § 30.30 is denied.
D Preclusion of Previous Grand Jury Testimony
Defendant argues that the Special District Attorney should be precluded from using the defendant's testimony from the previous grand jury which handed up Indictment No. 07-066, since that proceeding was subsequently sealed after dismissal on appeal, in the trial on the present indictment for impeachment purposes if the defendant testifies in his own behalf.
See CPL § 160.50, and Mtr of Hynes v Karassik, 47 NY2d 659 (1979); Mtr of Dondi, 63 NY2d. 331 (1984). Generally speaking, unsealing is allowed only under the circumstances stated in CPL § 160.50(1)(d). Here, the pertinent exception would be under (d)(ii), "a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it." In People v Lester, 135 Misc 2d 205, Bronx Supreme Court, 1987, the People sought to have access to sealed grand jury testimony of a defendant in a prior, unrelated case where defendant was charged with two robbery counts and a grand larceny count. They wished to unseal the minutes when defendant testified under a waiver of immunity before another Grand Jury concerning unrelated crimes, so that the defendant's testimony could be used to impeach him if he testified in that case and offered an alibi which was inconsistent with his testimony before the first Grand Jury, concerning his actions and whereabouts at approximately the same date and time involved in the first prosecution. Citing Karassik, at 664, the court noted that there are circumstances where records must be unsealed to serve fairness and justice, but that the authority should be exercised only rarely "upon a compelling demonstration . . . that without an unsealing of criminal records, the ends of protecting the public cannot be accomplished." Mtr of Dondi at 338. The court denied the People's request, because they failed to show a current, compelling need for the minutes. There was no evidence at the time of the motion that defendant would testify, or that he would impose an alibi defense inconsistent with his prior Grand Jury testimony. Thus, the motion was denied as premature.
Similarly, here the defendant's motion is denied as premature. If the defendant chooses to testify in the trial of the instant indictment this issue may be revisited "In Limine" upon application of either party.
E Bill of Particulars
The sole function of a Bill of Particulars is to define more specifically the crime or crimes charged in the indictment, not to enable counsel to examine the People s case, as on trial, but to serve merely as a clarification of matters set forth in the instrument accusing him.
Any "Request for Bill of Particulars" as defined in CPL § 200.95(1)(b) must be made by separate instrument prior to the filing of a motion for a court ordered Bill of Particulars pursuant to CPL § 200.95(5). CPL § 200.95(3) provides that such request must be served upon the People within 30 calendar days of arraignment.
The People must serve a written response or written refusal to each request within 15 calendar days of the request, or soon thereafter as practicable. [CPL § 200.95(2), (4)]. A refusal must comply with the requirements of CPL § 200.95(4).
Defendant may thereafter move pursuant to CPL § 200.95(5) for an order directing the People to provide all requested particulars to which the People have filed as timely, written "refusal" as required by CPL § 200.95(4), or, defendant may move for sanctions pursuant to CPL § 200.95(5) [which incorporates CPL § 240.70], for the failure of the People to file a timely, written refusal setting forth the reason for refusal to comply with each request.
Clearly, the defendant in the case at bar never requested a Bill of Particulars as required by CPL § 200.95 (1)(b).
However, in this case the Indictment, together with the Special District Attorney's October 13, 2009 response to paragraph A.1(i) of the Court's September 24, 2009 Pre-trial Order provide sufficient specificity to the defendant as to the charges. Furthermore, the information sought by the defendant goes beyond the purposes intended for Bill of Particulars and touch upon matters purely evidentiary in nature.
The defendant's request for a Bill of Particulars in denied.
F Sandoval/Molineux
The Court orders that a so called Sandoval hearing ( People v. Sandoval, 34 NY2d 371) will be held, if necessary, In limine and just prior to jury selection. The defendant as he knows his own criminal history best, is to provide a written notice of any prior convictions that he wishes the Court to consider. The Special District Attorney shall notice the Court and defendant, pursuant to CPL § 240.43, ten days prior to jury selection of any prior uncharged criminal, vicious or immoral conduct of which he has knowledge and which he intends to use at trial for purposes of impeaching the credibility of the defendant should he choose to testify on his own behalf. If none are known the People have a continuing duty to give notice of anything that comes within their knowledge at the earliest possible instance at which time a hearing "In Limine" will be scheduled.
Furthermore, if the People intend to offer in their case in chief, any evidence in the nature contemplated by People v. Molineux, 168 NY 264 (1901) and its progeny they shall give written notice to the defendant and the Court of their intent to do so and the substance of defendant's conduct encompassed by the other conduct within twenty days or as soon as the evidence becomes known to the People whichever occurs later. If no such information is known, the People will be under the continuing duty to disclose same as soon as it becomes available.
Upon notice of same a hearing shall be held prior to jury selection pursuant to People v. Ventimiglia, 52 NY2d 350 (1981) or at a time determined by the Court.
No verbal proof by the People will be permitted at such hearing. Either a sworn written statement or a transcript of sworn testimony by the witness who will prove the evidence at trial must be submitted. In lieu thereof, the People may produce the witness at such hearing. Such statement, transcript or testimony must set forth the evidence the People intend to elicit at trial. Any order allowing such evidence will be limited to the facts contained in such statement, transcript or testimony.
G Exculpatory Material
The defendant requests delivery to him of all evidence exculpatory in nature. The Special District Attorney has responded in his October 13, 2009 response to the Court's September 24, 2009 pre-trial order and Answering Affirmation dated December 14, 2009, to defendant's Notice of Motion that the "People have and know of the existence of no evidence favorable to, or exculpatory, of the defendant under Brady v. Maryland, 373 U.S. 83."
The Court grants an order to the extent that the Special District Attorney will furnish the defendant with any information which is exculpatory or favorable in nature under the guidelines of Brady v. Maryland, 373 US 83, provided however, that such information is in the possession or control of the Special District Attorney and is known by him to exist or should be known by him to exist by the exercise of due diligence on his part. People v. Hvizd, 70 Misc 2d 654, 657 (NY Co Ct, 1972). This duty is not limited to what tends to demonstrate the defendant's innocence, but includes information that affects the credibility of a key prosecution witness. People v. Harris, 35 AD3d 1197 (4th Dept 2006).
The People are hereby advised that a complete response to a demand made pursuant to CPL § 240.20 (1)(h) requires them to disclose to defendant any and all statements made to, offers made to, agreements with or efforts on behalf of any witness or other person (whether or not such efforts were successful), by the prosecution or police or private person or entity, to provide any benefit or consideration in order to induce a witness or potential witness to cooperate, continue to cooperate, be willing to testify or to testify in connection with the investigation or prosecution of any matter.
The People are reminded of the ruling in People v. Valentin , ( 1 AD3d 982 [4th Dept 2003]), that "the criminal record of a prosecution witness constitutes exculpatory material within the meaning of Brady" and that the criminal record of a witness is deemed in the People's possession and must be provided to the defense if that record is "readily available" to the prosecutor and "is known to other individuals in [the prosecutor's] office who recently prosecuted the witness".
H Additional Motions and Further Relief
The defendant's requests to bring further motions or for further relief is hereby denied without prejudice to any written application, on notice to the People, and based upon good cause shown.
The foregoing constitutes the Opinion, Decision and Judgement of this Court.