Opinion
1127 KA 18–00875
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Jessica GAZZILLO, Defendant–Appellant.
DONALD R. GERACE, UTICA, FOR DEFENDANT–APPELLANT. LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
DONALD R. GERACE, UTICA, FOR DEFENDANT–APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). We reject defendant's contention that County Court erred in refusing to dismiss the indictment pursuant to CPL 210.35(5). " ‘[T]here is no indication that the People knowingly or deliberately presented false testimony before the [g]rand [j]ury, and thus there is no basis for finding that the integrity of the [g]rand [j]ury proceeding[ ] was impaired’ " ( People v. Williams, 163 A.D.3d 1422, 1422, 80 N.Y.S.3d 610 [4th Dept. 2018] ; see People v. Morales, 160 A.D.3d 1414, 1418, 76 N.Y.S.3d 682 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ; People v. Bean, 66 A.D.3d 1386, 1386, 885 N.Y.S.2d 804 [4th Dept. 2009], lv denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010] ). We further conclude that, insofar as defendant sought dismissal of the indictment in the interest of justice under CPL 210.40 based, inter alia, on alleged misconduct during the grand jury proceeding, the court did not abuse its discretion in refusing to dismiss the indictment on that ground. The court afforded the parties an opportunity to be heard and create a record, including the questioning of the grand jury prosecutor in connection with defendant's allegations of misconduct, and, upon review of the record, we agree with the court that this is not one of those "rare cases where there is a compelling factor which clearly demonstrates that prosecution of the indictment would be an injustice" ( People v. Quadrozzi, 55 A.D.3d 93, 103, 863 N.Y.S.2d 455 [2d Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009] [internal quotation marks omitted]; see People v. May, 100 A.D.3d 1411, 1413, 953 N.Y.S.2d 767 [4th Dept. 2012], lv denied 20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924 [2013] ).
Defendant further contends that she was denied her right to a fair trial by the cumulative effect of the allegations rejected above and the prosecutor's failure to disclose Brady material. Even assuming, arguendo, that a Brady violation did occur, we conclude that there was no violation of defendant's right to a fair trial because she was "given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during [her] case" ( People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ; see People v. McMillian, 158 A.D.3d 1059, 1060, 71 N.Y.S.3d 262 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ).
Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).