Opinion
03-0703.
Decided January 14, 2004.
APPEARANCES: WILLIAM J. FITZPATRICK, ESQ., District Attorney of Onondaga County, JOSEPH V. O'DONNELL, ESQ. of counsel Attorney for the People.
THOMAS W. RYAN, ESQ., Attorney for Defendant, GARTH M. HILL.
DECISION/ORDER
The defendant, Garth M. Hill, has made a Motion to Dismiss the Indictment pursuant to Criminal Procedure Law Section 210.20(1)(c) upon the grounds that the grand jury proceeding was defective within the meaning of Criminal Procedure Law Section 210.35(5). More particularly, the defendant alleges that his rights under Criminal Procedure Law Section 190.50 (6) were violated as a result of the prosecutor's failure to adequately inform the Grand Jury of the defendant's request to hear witnesses on his behalf. In response, the People contend that they satisfied their obligation under Criminal Procedure Law Section 190.50 in that the grand jury was given the opportunity to hear from the witnesses the defendant requested and voted not to do so.
The Court has considered the motion, exhibits and affidavit submitted on behalf of the defendant and the affidavit and exhibit submitted by the district attorney's office in opposition thereto and has considered oral argument of counsel. The Court has also read and considered the grand jury minutes relative to the instant Indictment.
A review of the various documents by the Court reveal that on July 31, 2003, the defendant, Garth Hill, was arraigned in Syracuse City Court for the charges of Murder in the Second Degree and Criminal Possession of a Loaded Firearm in the Second Degree charging him with the shooting death of the victim Jimmy Smiley on the 23rd day of July, 2003 in the City of Syracuse. Attorney Randi Bianco was assigned to represent the defendant. At that time, a "generic" grand jury notice was served on the defendant and the case was scheduled for a preliminary hearing on August 5, 2003. On or about July 31, 2003, a second, more specific grand jury notice was served on the defendant at the justice center indicating that if he so desired, the time was set aside for the defendant to testify on August 4th, 2003 at 11:30 a.m. On August 1, 2003, Attorney Bianco was relieved and Attorney Thomas Ryan was assigned. At some point between August 1st, 2003 and August 4th, 2003, the defendant's new attorney and the district attorney's office reached an agreement whereby the People agreed not indict the defendant on August 4th, 2003 in exchange for the defendant waiving his right to a preliminary hearing. In accordance with their agreement, the case was then waived. The People had also agreed to provide defense counsel with a redacted version of the police reports within one week and did so.
On August 7th, 2003, the defendant's attorney sent a letter to the district attorney's office indicating, among other things, (1) that he wished to testify before the grand jury and (2) that he wanted the name of the grand jury's foreperson as he wished to have the grand jury call certain witnesses in such proceeding. On or about August 12th, 2003 the People contacted the defendant's attorney indicating that if the defendant wanted to testify that he needed to do so on or before August 14th, 2003 as the grand jury term was going to expire. The defendant did not testify.
On September 26, 2003 the defendant, Garth Hill, was arraigned before this Court on Indictment Number 03-0694-1 charging him with Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree . A motion to dismiss the Indictment was filed by the defendant on October 1, 2003 alleging that it was defective within the meaning of Criminal Procedure Law Sections 210.35(4) and (5) contending that the defendant was not accorded a reasonable opportunity to testify nor did the district attorney ever provided the defendant with the name of the grand jury foreperson for purposes of calling defense witnesses. This Court granted the defendant's motion to dismiss with leave to represent the case to another Grand Jury on October 9th, 2003.
In accordance with the Court's decision, on October 15th, 2003, the defendant's attorney served upon the district attorney a letter requesting, among other things, that the defendant be permitted to testify before the Grand Jury in his own behalf pursuant to Criminal Procedure Law Section 190.50(5) and requested that the grand jury hear the testimony of several witnesses "who were with the defendant after the initial altercation outside of Bo's Place" pursuant to Criminal Procedure Law Section 190.50(6). Included in that letter was the name and address of each witness requested and the expected content of his or her testimony.
On October 27th, 2003, the defendant's attorney received notice pursuant to Criminal Procedure Law Section 190.50 which indicated that the time reserved for his client to testify before the Grand Jury was Thursday, October 30th, 2003 at 2:30 p.m. However, the defendant could not be transported at that time and the matter was rescheduled. The defendant was then accorded the opportunity to testify on Thursday, November 13th, 2003 at 12:45 p.m. however the defendant declined to testify. At no time, however, did the defendant withdraw his previous request to have the grand jury consider the testimony of certain witnesses.
The defendant was then arraigned before this Court on November 26, 2003 on Indictment Number 2003-1054-1 for the crimes of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree . The defendant entered a plea of "not guilty". The defendant now alleges that the instant Indictment must be dismissed as defective within the meaning of Criminal Procedure Law Sections 210.35(5).
It is well settled that in making a motion to dismiss an indictment as defective pursuant to Criminal Procedure Law Section 210.35(5), the defendant has the burden of demonstrating the existence of defects impairing the integrity of the grand jury proceeding and giving rise to a possibility of prejudice ( People v Wood , 291 AD2d 824, quoting People v Santmyer , 255 AD2d 871; see also, People v Johnson , 282 AD2d 309; People v Reome , 309 AD2d 1067; People v Welch , ___ AD2d ___, Appellate Division, Fourth Department, December 31, 2003).
However, the dismissal of an indictment due to defective grand jury proceedings (see, Criminal Procedure Law Section 210.35(5)) are limited "to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury" ( People v Huston , 88 NY2d 400, 409; see also, People v Johnson , 282 AD2d 309; People v Reome , 309 AD2d 1067; People v Welch , ___ AD2d ___, Appellate Division, Fourth Department, December 31, 2003). The defendant need not demonstrate actual prejudice before an indictment is considered defective, but rather, must merely show the "possibility" of prejudice from the conduct of the prosecutor (see, People v Di Falco , 44 NY2d 4842, 488). This possibility of prejudice must follow from some identifiable misconduct on the part of the prosecutor such as would have impaired the integrity of the grand jury process (see, People v Huston , 88 NY2d at 409; see also, People v Johnson , 282 AD2d 309; People v Reome , 309 AD2d 1067; People v Welch , ___ AD2d ___, Appellate Division, Fourth Department, December 31, 2003).
In the present case, the defendant argues that the instant Indictment must be dismissed in that the prosecutor failed to properly instruct the grand jury relative to his request to have certain exculpatory witnesses testify pursuant to Criminal Procedure Law Section 190.50(6) and that such conduct compromised the integrity of the grand jury proceedings.
In response, the People contend that the integrity of the grand jury proceeding was not impaired in that the grand jury was informed of the defendant's request to have certain witnesses called on his behalf but exercised its discretion and voted not to do so. The People further contend that since the defendant does not have an absolute right to call witnesses before the grand jury and may only request that the grand jury cause such witnesses to appear, the defendant has failed to demonstrate any wrongdoing or any prejudice resulting therefrom.
The primary function of the grand jury in every felony presentation "is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution" ( People v Calbud, Inc. , 49 NY2d 389, 394; see also, People v Pelchat , 62 NY2d 97, 108; People v Lancaster , 69 NY2d 20, 26). The evidence submitted must be competent, admissible and legally sufficient to establish that a crime was committed and that the accused committed it (see, Criminal Procedure Law Section 190.65(1)).
Because grand jury proceedings are conducted by the prosecutor alone, the prosecutors generally enjoy wide discretion in presenting their case to the grand jury (see, People v Di Falco , 44 NY2d 482; People v Rockwell , 97 AD2d 853). In addition to providing legal instruction to the grand jury, the district attorney determines what evidence to present to that body and what evidence should be excluded. Furthermore, the district attorney is not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the grand jury to make a more informed determination (see, People v Lancaster , 69 NY2d 20, 25-26).
In the ordinary case, it is the defendant who, through the exercise of his own right to testify and have others called to testify on his behalf before the grand jury brings exculpatory evidence to the attention of the grand jury (Criminal Procedure Law Section 190.50(5) and (6); see, People v Lancaster , 69 NY2d 20; People v Sepulveda , 122 AD2d 175; see also, People v Ramjit , 203 AD2d 488; People v Lee , 178 Misc 2d 24).
A defendant's right to testify or to have others called to testify is purely statutory and not absolute and is also limited to matters which are relevant to the case before the grand jury (Criminal Procedure Law Section 190.50(5) and (6); see, People v Smith , 87 NY2d 715, 719; People v Cajigas , 174 Misc 2d 472; People v Harris , 173 Misc 2d 248; People v Jorge , 172 Misc 2d 795; see also, People v Edwards , 192 Misc 2d 473).
The mechanism by which an accused who has been held in local court for grand jury action requests that he himself be given a chance to testify before the grand jury, or that the grand jury be informed of the defense request that it subpoena certain witnesses, or both is set forth in Criminal Procedure Law Article 190.
Relative to a defendant's request that certain witnesses be called, Criminal Procedure Law Section 190.50(6) provides that "a defendant or person against whom a criminal charge is being or about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called pursuant to subdivision three" (see, Criminal Procedure Law Section 190.50(6) and (3)).
The clear thrust of this statute is that once the defendant makes the affirmative step of requesting that the grand jury consider a witness on his behalf, the grand jury then exercises its discretion as to whether or not to call the requested witnesses to testify (see, People v Montagnino , 171 Misc 2d 626, 627; see also, People v Urbanik , NYLJ, April 10, 1990, Courts Decisions, p21; People v Feconda , NYLJ, December 28, 1990, Courts Decisions, p21; People v Lambriola , NYLJ, July 7, 1998, Courts Decisions, p25).
In the present case, the defendant, Garth Hill, attempted to bring exculpatory evidence to the attention of the grand jury by requesting the grand jury to consider the testimony of several defense witnesses. In a letter dated October 15, 2003 addressed to the assistant district attorney in charge of the case, the defendant's attorney requested that the prosecutor convey to the grand jury the defendant's request that "the grand jury hear the testimony of several witnesses who were with the defendant after the initial altercation outside of Bo's Place." The letter specified the name and address of each witness and provided a brief synopsis of each witnesses' anticipated testimony. The letter indicated that it was his belief that these witnesses possessed relevant and exculpatory information and that if given the opportunity to testify "they will all testify that he did not commit this crime."
The Court is of the opinion that the defendant's letter served upon the district attorney's office clearly constituted an exercise of the defendant's statutory right pursuant to Criminal Procedure Law Section 190.50(6).
The Court is also of the opinion that once the defendant submitted such a request, the prosecutor had a statutory duty to notify the grand jury of defendant's request and to allow the grand jury to exercise its discretion in determining whether it wished to hear from those witnesses ( People v Andino , 183 Misc 2d at 292; see also, People v Montagnino , 171 Misc 2d 626; People v Feconda , NYLJ, December 28, 1990, Courts Decisions, p21).
The case law is clear that it is the grand jurors and not the prosecutor who decides whether or not proposed defense witnesses are to testify. The grand jury is vested with discretion in calling witnesses and receiving evidence. If the grand jury does believe such person may possess relevant information and desires to hear from this witness, it may direct the prosecutor to issue and serve a subpoena on such person (see, CPL Sections 190.50(3) and (6); see also, People v Stepteau , 81 NY2d 799, 800). It is the prosecutor's obligation to secure the presence of such witnesses by power of subpoena in order to satisfy the grand jury's request and the prosecutor does not have the right to usurp the grand jury's discretion in determining which witnesses should be heard (see, People v Andino , 183 Misc 2d 290; People v Feconda , NYLJ, December 28, 1990, Courts Decisions, p21; People v Urbanik , NYLJ, April 10, 1990, Courts Decisions, p21).
Moreover, the failure of the district attorney to inform the grand jury of the defense request to call certain witness warrants a dismissal of an indictment even though the evidence and the charge on the law are sufficient (see, People v Montagnino , 171 Misc 2d 626; People v Andino , 183 Misc 2d 290; People v Butterfield , 267 AD2d 870; People v Stanton , 241 AD2d 687; People v Cooper , 303 AD2d 776).
In People v Andino , 183 Misc 2d 290, the defendant's attorney, by letter, requested that two witnesses, specifically named, be called as witnesses before the grand jury. While the People acknowledged receipt of defense counsel's letter and contend that they were fully prepared to offer the names of the defense witnesses to the grand jury, the grand jury minutes clearly established that the People never informed the grand jury of the defendant's request to present witnesses on her behalf. The court held that the failure on the part of the prosecutor to communicate the defendant's request to the grand jury violated the plain language of the statute and that failure to conform with the requirements of the Criminal Procedure Law Article 190 impaired the integrity of the proceedings resulting in prejudice to the defendant.
In the present case, the defendant's attorney served a written request to call certain witnesses and the People acknowledge receipt of same. The People contend that they fully complied with their obligations under Criminal Procedure Law Section 190.50 in that the grand jury was informed of the defendant's request to have certain witnesses called on his behalf but that the grand jury exercised its' discretion and voted not to do so. The People further contend that since the grand jury proceeding is not a mini-trial, they were not required to do anymore than that. The Court disagrees.
It is well settled that a grand jury proceeding is not intended to be an adversary proceeding, except to the limited extent that New York Criminal Procedure Law Section 190 gives the accused the right to testify and to request that a person designated by him or her be called to testify (see, People v Brewster , 63 NY2d 419, 422; see also, People v Lancaster , 69 NY2d at 26; People v Stepteau , 178 AD2d 376, 378; People v Martucci , 153 AD2d 866, 867; People v Lee , 178 Misc 2d 24, 28). The grand jury and the petit jury are different bodies with different functions and the People do not have the same burden of proof before the grand jury as they have before the petit jury. Neither do the People have the same obligation of disclosure at the grand jury stage as they have at the trial stage (see, Brady v Maryland , 373 US 83; People v Hill , 122 Misc 2d 895, 897).
However, the prosecutor's discretion in presenting the case to the grand jury is not without limitations, for it is settled that at a grand jury proceeding, the prosecutor performs the dual role of advocate and public officer and thus "charged with the duty not only to secure indictments but also to see that justice is done" ( People v Lancaster , 69 NY2d at 26; see also, People v Pelchat , 62 NY2d at 105; People v Huston , 88 NY2d 406; People v Stanton , 241 AD2d 687; People v Barclift , NYLJ, Dec 4, 2003, Decision of Interest, p19). With this potent authority, moreover, comes responsibility, including "the prosecutor's duty of fair dealing" ( People v Pelchat , 62 NY2d at 104; see also, People v Lancaster , 69 NY2d at 26; People v Huston , 88 NY2d 406; People v Stanton , 241 AD2d 687). As the Court of Appeals has explained, "these duties and powers, bestowed upon the district attorney by law, vest that official with substantial control over the grand jury proceedings, requiring the exercise of completely impartial judgment and discretion" ( People v Di Falco , 44 NY2d at 487; see also, People v Huston , 88 NY2d at 406).
In the present case, a review of the grand jury minutes clearly reveals that the assistant district attorney advised the grand jury that the defendant had made a request to have certain witnesses called on his behalf and read a list of names. By doing so, the prosecutor clearly satisfied it's obligations in conveying the defendant's request to the grand jury. However, upon hearing such request, the grand jury then asked the assistant district attorney for more information relative to those witnesses to assist them in exercising their discretion to call such witnesses. The defendant's letter contained the exact information the grand jury was looking for. However, despite the fact that the information requested by the grand jury was clearly contained in the defendant's letter, the assistant district attorney responded that he could not provide them with such information.
The defendant's letter specifically stated:
"As of this time, I request that the grand jury hear from the testimony of several witnesses who were with the defendant after the initial altercation outside of Bo's Place. I request that you convey this request to the grand jury. These witnesses include, but are not limited to: Jerome Days, 125 Maurice Avenue and Darnell Barnett, 1607 South Salina Street who will testify that the defendant was transported from the 2800 block of South Salina Street to 125 Maurice Avenue; thereafter he was transported by Anna Barner, 1607 South Salina Street to 210 Bell Avenue. In the car were Thomas Jamell Barnett, 247 Kirk Avenue, Darnell Barnett and Victoria, whose last name and address I have to get for the grand jury to issue a subpoena to her if it so chooses. The defendant was thereafter with Lakisha Dixon and her mother, Doreen Ashton, 210 Belle Avenue for the rest of the morning . . . They will all testify that he did not commit this crime. In addition, I would like to request that the grand jury hear the testimony of Officer Stephen Bear. He was in the area when Mr. Smiley was shot. He hear the shots and saw the white Corsica leave the scene. He did not see a maroon van that some witnesses have said the defendant was in."
The Court finds that while the prosecutor conveyed to the grand jury, the defendant's request to have certain witnesses called on his behalf, the assistant district attorney's response when asked by the grand jury for more information regarding those witnesses was clearly erroneous in light of the facts surrounding this case and therefore impaired the integrity of the grand jury proceedings to the extent that the assistant district attorney's response had the possibility of resulting in prejudice to the defendant.
The grand jury minutes reflect that the grand jury proceedings against the defendant, Garth Hill, were commenced by the taking of the testimony of one witness on October 24, 2003. At the conclusion of that one witness's testimony, the matter was adjourned. Said testimony consisted of seven pages. On November 14, 2003, approximately two and a half weeks later, the same grand jury re-convened relative to the present case against the defendant, Garth Hill. At that time the assistant district attorney marked and received into evidence one exhibit which consisted of a certified copy of the autopsy report regarding the victim's cause of death. No additional testimony was presented. The assistant district attorney then advised the grand jury he had received a request from the defendant's attorney asking the grand jury to consider and to vote on whether or not they wanted to hear from certain witnesses. The assistant district attorney then proceeded to read to the grand jury a list of names. More particularly, the assistant district attorney advised the grand jury of the defendant's request as follows
ADA: Pursuant to the Criminal Procedure Law, I have received a request of the defense attorney and asking that you, the grand jury, consider and vote whether or not you want to hear from the following witnesses: Jerome Days, Darnell Barnett, Anna Barner, Thomas Jamell Barnett, Victoria last name and address unknown, Lakisha Dixon, Doreen Ashton, and Officer Stephen Bear. Any questions?
Despite the specificity of the defendant's letter relative to the witnesses purpose and anticipated testimony, the assistant district attorney merely read the names to the grand jury without further instruction. After so advising the grand jury of the defendant's request as set forth above, the following dialogue took place between the grand jury and the assistant district attorney:
Grand Juror: Was this when was the case presented?
ADA: When?
The Secretary: October 24.
Grand Juror: Are we voting for each or is it all or nothing?
ADA: You can do each witness; sure.
The Foreperson: Can we ask you anything about the witnesses? I mean were they witnesses of the crime or . . . ?
ADA: I can't tell you anything. I don't know.
The Foreperson: Or the police officer, was he the one that did the arrest in the investigation?
ADA: It's improper for me to discuss even what I'd be giving my opinion on what I'd think they would say.
Grand Juror: Can I ask if you can refresh our memory?
ADA: The allegation is that, if you recall, there was a fight at Bo's Place, an altercation outside, and subsequent to that the shooting of Jimmy Smiley took place in the street.
Grand Juror: Thank you.
ADA: Now, do you want me to read those so you can vote them one at a time, or whatever is convenient for you? I read them kind of fast. Shall I read them again?
The Foreperson: Okay. Start with Jerome.
ADA: Jerome Days; D-A-Y-S, Darnell Barnett; Anna Barner; Thomas Barnett; Victoria last name unknown; Lakisha Dixon; Doreen Ashton; Officer Stephen Bear.
The Foreperson: Okay. Personal opinion; maybe you can't answer: As our legal advisor would it actually hurt the case; I mean is it better to see?
ADA: As your legal advisor it would be improper for me to
The Foreperson: Say anything.
ADA: That should be decided amongst yourselves. What I would say to you the burden of the People is to satisfy to you whether there's reasonable cause to believe a crime was committed, and reasonable cause to believe the accused committed it. Okay; I'll leave you alone for you to deliberate.
The grand jury then voted not to hear from said defense witnesses and voted to indict the defendant, Garth Hill, on the charges of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree .
Based upon the facts and circumstances of this case, the Court is of the opinion that the prosecutor was required but failed to provide the grand jury with the information requested as set forth in the defendant's letter and that such error prevented the grand jury from properly exercising its' discretion whether to hear from the defendant's witnesses. In order to enable the grand jury to decide whether to hear from a proposed witness, the prosecutor must necessarily convey some brief synopsis or description of the witness's expected testimony (see, People v Johnson , 282 AD2d 309, 310).
As reflected in the grand jury minutes, the grand jury had obvious questions relative to the relevancy of the proposed defense witnesses. Up to that point, the grand jury had heard testimony from only one witness some two weeks earlier and clearly [*9]needed their memories refreshed as what the case was all about. Based upon the evidence before them and with the defendant's request before them, the grand jury needed to decide whether the proposed witnesses possessed additional information relevant to the case and whether they should be called to testify. To adequately exercise it's discretion whether to call such witness, the grand jury then asked questions of the prosecutor, their legal advisor, regarding the proposed witnesses connection to the case. However, the assistant district attorney responded that he could not tell them and that he did not know. In light of the fact that the prosecutor had the requested information available to him in the defendant's letter, the Court finds such response to be inadequate and clearly erroneous under the facts and circumstances of this case. The letter specifically set forth names and address of each witness and provided a brief description of the anticipated testimony of each witness. Upon the grand jury's request, such information should have been conveyed to them.
The Court is of the opinion that although the prosecutor has wide discretion in presenting their case to the grand jury, it was incumbent upon the prosecutor, as a public officer, to act fairly in presenting their case. In considering the requested information, the prosecutor does not have the right to interfere with the grand jury's discretion as the grand jury can't adequately exercise its discretion if the information is not fairly and impartially given. Clearly, under the facts and circumstances of this case, the prosecutor could have easily responded to the grand jury's questions by either reading the defendant's letter to the grand jury or providing them with a copy of the letter for their consideration. Instead, the prosecutor did nothing. The failure of the prosecutor to assist the grand jury in the manner set forth above made it impossible for the grand jury to intelligently exercise its discretion whether to hear from such witnesses causing potential prejudice to the defendant.
The Court is of the opinion under the unique circumstances of this case that the prosecutor neglected its function as a public officer and operated solely as an advocate. Justice was not done.
While it could argued that the prosecutor was attempting to be cautious for fear that "summarizing the expected testimony of a proposed witness could result in overemphasis or omission of certain facts" and ultimately flaw the proceedings, the Court is of the opinion that a reading of the summary of the witnesses expected testimony, as provided by the defendant in this case, could not otherwise be converted from proper conduct into misconduct at some later date (see, People v Johnson , 282 AD2d at 310).
Based upon the foregoing, the Court finds that the prosecutor's failure to provide the requested information to the grand jury impaired the integrity of the proceedings with the possibility of prejudice to the defendant warranting dismissal of the Indictment. Therefore, the defendant's motion to dismiss the Indictment is granted.
The People are granted leave to represent this case to another grand jury.
The defendant's bail status shall be continued in accordance with Criminal Procedure Law Section 210.45(9).
The Decision herein constitutes the Order of the Court.