Opinion
10-28B.
Decided September 30, 2010.
Hon. Jason L. Cook, Yates County District Attorney, Counsel for the People.
Swinehart and Mashewske, (Richard E. Swinehart, Esq., of Counsel), Counsel for the Defendant.
Defendant, CALEB FULKROD, was indicted for one count of Grand Larceny in the Third Degree, a class D felony, in violation of Penal Law § 155.35(1) and one count of Petit Larceny, a class A misdemeanor, in violation of Penal Law § 155.25.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Pretrial Motion dated September 14, 2010, accompanying affirmation and other supporting documents.
Upon argument of his Omnibus Motions on September 21, 2010 certain branches and elements therein were decided and determined upon said argument.
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.
Based on the defendant's motion papers, the District Attorney's responding affirmation datedSeptember 19, 2010; the Grand Jury Minutes, the arguments had and all the 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 moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35. The defendant requests that the Court review the Grand Jury Minutes to determine, among other things, whether or not the People charged the Grand Jury with the claim of right defense pursuant to P.L. § 155.15(1). The minutes reveal that the prosecution did not include this defense in its charge to the Grand Jury.
A prosecutor must charge a Grand Jury with a defense when it is a complete defense, and there is evidence before the Grand Jury to support it, "thus potentially eliminating a needless or unfounded prosecution." People v Mujahid , 45 AD3d 1184 , 1186 (3rd Dept 2007); People v Valles, 62 NY2d 36 (1984); People v Lancaster, 69 NY2d 20 (1986); People v Mitchell, 82 NY2d 509 (1993).
"A court reviewing grand jury minutes must ensure that a district attorney instructed the panel as to an appropriate defense that was `complete' and `exculpatory', such that if a grand jury could have found the defense to be applicable, `no indictment would have been returned and an unwarranted prosecution would have been avoided.'" People v Crump, 157 M 2d 566, 567 (NY Co Ct., 1992) quoting People v Valles, 62 NY2d 36 at 38-39 (1984).
The Grand Jury in the case at bar had before it statements made by defendant, and co-defendant Catlin. Regarding Count I, the January 20, 2010 statement of co-defendant Catlin when asked about the theft of a Yamaha Raptor 700 4-wheeler stated: "Caleb Fulkrod and I — Caleb said he had already paid for it so we went to pick it up and we towed it home."
Also regarding Count I, the January 22, 2010 statement of defendant Fulkrod when asked about the theft of the 4-wheeler stated: "It's a Raptor 700R. Nathan asked me if I wanted to help him pick it up and believing that he purchased the 4-wheeler earlier and paid for it, I willingly helped him."
Regarding Count IV, in his 12/10/09 statement, defendant Fulkrod said: "Aaron Henderson, Nathan Catlin and I went to Tones Garage last night. Nathan said that somebody at Tones said that we could take metal. So we took about ten wheel drums and two aluminum radiators from a bin behind Tones building."
In People v Zona , 14 NY3d 488 (2010), involving a petit larceny charge against a sheriff's deputy, the Court of Appeals concluded that a claim of right charge should have been given to the petit jury because of the statement of the defendant to an investigator that his supervisor, the undersheriff of Seneca County "told us that he was taking a canoe home and he told us we could take what we want." Id, at 490.
Similarly here, the Grand Jury had before it statements, albeit conflicting statements by the two co-defendants, that, if one statement was believed, would be a complete defense for the defendant making the statement. Thus, if the claim of right charge had been given to the Grand Jury, and if the Grand Jury believed Fulkrod's statement that he believed Catlin had already purchased it, no indictment would have been returned against him for Count I. Likewise, if the Grand Jury believed Fulkrod's statement concerning Count IV, that Nathan said somebody at Tones said they could take metal, no indictment would have been returned against him for Count IV.
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 that the prosecution failed to properly instruct the Grand Jury as to the "claim of right" defense the defendant's motion to dismiss the Indictment is granted.
Other issues raised by counsel for dismissal of the Indictment are not reached as they are moot given the Court's determination herein.
The People may resubmit the charges to another Grand Jury and the securing order of $2,500.00 cash/$5,000.00 fully secured bond shall continue pending resubmission. CPL § 210.45(9).
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.