Opinion
2014-01-29
The PEOPLE, etc., appellant, v. Duane GRANT, respondent.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for appellant. Leon H. Tracy, Jericho, N.Y., for respondent.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for appellant. Leon H. Tracy, Jericho, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the County Court, Nassau County (Ayres, J.), dated April 30, 2010, as, upon reargument, adhered to its original determination in an order of the same court dated October 16, 2009, which, upon reviewing the grand jury minutes pursuant to a stipulation in lieu of motions, dismissed the indictment on the ground that the grand jury proceeding was defective within the meaning of CPL 210.35(5), with leave to re-present the matter to a new grand jury.
ORDERED that the order is affirmed insofar as appealed from.
A grand jury indicted the defendant on counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree. In an order dated October 16, 2009, the County Court, upon reviewing the grand jury minutes pursuant to a stipulation in lieu of motions, dismissed the indictment, with leave to re-present the matter to a new grand jury. The court concluded that the grand jury proceeding was defective within the meaning of CPL 210.35(5) based on the prosecutor's failure to instruct the grand jury on the defense of temporary and lawful possession of a weapon. Thereafter, in an order dated April 30, 2010, the same court, upon reargument, adhered to its determination in the order dated October 16, 2009.
Contrary to the People's contention, the County Court did not err in dismissing the indictment. “[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution” (People v. Wilson, 228 A.D.2d 708, 709, 645 N.Y.S.2d 498 [internal quotation marks omitted]; see People v. Mitchell, 82 N.Y.2d 509, 514, 605 N.Y.S.2d 655, 626 N.E.2d 630; People v. Lancaster, 69 N.Y.2d 20, 26–27, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; People v. Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418). Under the circumstances of this case, an instruction on the defense of temporary and lawful possession was warranted. The prosecutor's failure to instruct the grand jury on that defense impaired the integrity of that body ( see CPL 210.35 [5]; cf. People v. Malan–Pomaeyna, 72 A.D.3d 988, 898 N.Y.S.2d 508; People v. Samuels, 12 A.D.3d 695, 698–699, 785 N.Y.S.2d 485). SKELOS, J.P., BALKIN, LOTT and HINDS–RADIX, JJ., concur.