Opinion
14356 Ind. No. 4048/17 Case No. 2019–2219
10-14-2021
The PEOPLE of the State of New York, Respondent, v. Anthony HERNANDEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Gische, J.P., Moulton, Kennedy, Scarpulla, JJ.
Judgment, Supreme Court, New York County (James M. Burke, J. at motions to dismiss; Ann E. Scherzer, J. at plea and sentencing), rendered February 8, 2019, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of 2½ years, unanimously affirmed.
By pleading guilty, defendant forfeited his contention that the grand jury proceedings were impaired by the prosecutor's failure to disclose to the grand jury certain prior inconsistent statements of the testifying officer (see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Simmons, 94 A.D.3d 414, 941 N.Y.S.2d 488 [1st Dept. 2012], lv denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 [2012] ; People v. Bishop, 1 A.D.3d 112, 766 N.Y.S.2d 356 [1st Dept. 2003], lv denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ). In the alternative, we find no impairment of the integrity of the grand jury proceeding (see People v. Mitchell, 82 N.Y.2d 509, 605 N.Y.S.2d 655, 626 N.E.2d 630 [1993] ). The omitted statements amounted to minor impeachment evidence that created no possibility of prejudice to defendant by their omission (see Bishop, 1 A.D.3d at 112, 766 N.Y.S.2d 356 ).
In any event, the only remedy requested by defendant is dismissal of the indictment with prejudice, that is, without leave to re-present, and he expressly requests that if this Court denies that remedy, it should affirm. We find no basis for such a dismissal.