Opinion
4290/2008.
Decided March 29, 2010.
Gregory Johnston, Esq., For Seymour James, Esq., The Legal Aid Society, Brooklyn, NY, for defendant.
Charles J. Hynes, Esq., District Attorney, by Frank Santarpia, Brooklyn, NY, for the People.
Defendant moves, inter alia, (1) to dismiss the indictment pursuant to CPL § 210.20 (1) (c), on the ground that the Grand Jury proceeding was defective, and (2) to dismiss the indictment pursuant to CPL § 30.30.
Facts and Procedural History
Defendant was charged in an indictment with assaulting Leonard White on April 26, 2008. The People contend that on the day of the assault, the defendant was present at a "stoop sale" in Kings County, where he encountered a young lady with whom he had a prior relationship. According to Mr. White's grand jury testimony, the defendant was arguing in a heated manner with the young lady. Mr. White, the superintendent of the building where the sale was taking place, requested that defendant leave. As Mr. White followed the defendant away from the building and around the corner, the defendant suddenly turned and plunged a knife into Mr. White's chest.
Defendant gave a different account of the incident, stating that he was indeed at the sale, and that he was told to leave. He was followed by Mr. White. According to defendant, who testified in the Grand Jury, it was Mr. White who in fact suddenly slashed the defendant's face with a sheet rock knife, and defendant then used his own knife to defend himself, ultimately stabbing the victim in the chest.
The defendant testified that after the incident, he walked by a nearby police station, and officers observed the wound to defendant's face. As they questioned defendant, a radio call was received that a person fitting defendant's description had been involved in a stabbing. Defendant was ultimately arrested.
Prior to defendant's testimony, on May 1, 2008, Police Officer Paul Harloff testified before the Grand Jury that he responded in a marked vehicle to a radio report of a stabbing, and obtained a description of the defendant from the victim. He then canvassed the area, and located the defendant several blocks away. He arrested the defendant, and recovered a knife from the defendant.
In August 2008, the assigned Assistant District Attorney interviewed Officer Harloff, who described the events in a manner consistent with his earlier testimony. However, in a further interview on October 2, 2009, the People represent that Officer Harloff now indicated for the first time that he "may not" have been the officer who stopped the defendant or recovered the knife. The assigned Assistant District Attorney placed this on the record on October 21, 2009. Subsequent investigation indicated that three or four other officers in fact were involved in the initial encounter with the defendant. The names and memo book entries of these officers were turned over to defendant on November 18, 2009. Although the People represent that Officer Harloff was not in any way involved in the apprehension, arrest and recovery of the knife, none of officers who actually were present has any recollection of the circumstances surrounding the recovery and vouchering of the knife. The People concede that "this deficiency may preclude the People from prevailing at a Mapp hearing. . . ."
Defendant now moves to dismiss the indictment based on the introduction of perjured testimony before the Grand Jury. Defendant argues that the perjured testimony by Officer Harloff that the defendant was detained after the area was canvassed conflicts with the defendant's testimony, and falsely suggested that defendant was in flight, undermining the defense of justification. The People argue, to the contrary, that Officer Harloff's perjured testimony was so generalized that it did not prejudice the defendant. They argue that Officer Harloff never indicated that the defendant was running, or resisted arrest. Under these circumstances, they maintain that the admission of perjured testimony, without the knowledge of the District Attorney's office, did not impair the integrity of the Grand Jury.
In addition, defendant argues that the case must be dismissed pursuant to CPL 30.30. Defendant maintains that the action was commenced on April 28, 2008, with the filing of a felony complaint, and that 541 days have elapsed since this action was commenced. Defendant argues that the People's statement of readiness was illusory, as they were not in fact ready to proceed with hearings, or to try the case. The People agree that the action was commenced on April 28, and they thus calculate that they were required to be ready for trial within 183 days. They maintain, however, that only 124 days are chargeable, based on the actual time periods involved and the various time periods excluded from their 30.30 time. The People also argue that the perjured testimony did not affect their readiness, as they could proceed to trial without introducing the defendant's knife into evidence, and without calling any police officers to testify.
Discussion
Defect in the Proceedings Before the Grand Jury
In People v. Pelchat ( 62 NY2d 97, 464 NE2d 447, 476 NYS2d 79), a police officer, stating that he misunderstood the question propounded to him before the Grand Jury, gave testimony which indicated that the defendant was observed, along with others, to have engaged in off-loading marihuana from a boat. In fact, the defendant was merely present in a building to which the marihuana had been delivered. The Court of Appeals held that the false evidence was the only evidence in the Grand jury linking the defendant to the unlawful possession of marihuana (as defendant's presence at the scene of arrest, standing alone, would not support the indictment), and thus the indictment was fatally defective because the Grand Jury had no evidence before it worthy of belief that defendant had committed a crime.
In Pelchat, the false testimony was the only testimony linking defendant to the commission of a crime. Here, on the contrary, the victim's testimony standing alone was sufficient to support the indictment. It has been held that where there is sufficient evidence before the Grand Jury to support every element of the crimes charged, the mere fact that false or inadmissible evidence was inadvertently adduced before the Grand Jury does not necessarily affect the validity of the proceeding. (People v. Hansen, 95 NY2d 227, 233 [dismissal not required where portion of videotape of newscast, which was inadmissible hearsay, was inadvertently played during Grand Jury proceeding].) In People v. Johnson, 54 AD3d 636, 2008 NY Slip Op 7074 (1st Dep't 2008), the trial court was held to have properly declined to dismiss an indictment on the ground that a prosecution witness revealed at trial that a portion of his grand jury testimony was untrue, where the indictment was amply supported by other evidence, and there was no suggestion that the prosecutor had reason to believe the testimony was false.
The foregoing cases indicate that if the false testimony is admitted as to a minor point, or if without the false (or even perjured) testimony there is ample and sufficient competent evidence to support the Grand Jury's findings, the indictment need not necessarily be dismissed. (See, also, People v. Davis, 256 AD2d 200, 683 NYS2d 502 [1st Dep't 1998] [where prosecutor advised defendant and the court of his belief that one witness had offered perjured testimony before the Grand Jury, dismissal of indictment was not warranted as the record indicated that there was additional, apparently competent evidence before the Grand Jury to support the indictment]; People v. Bryant, 234 AD2d 605, 605-606 [2d Dep't 1996] [even if the testimony of the recanting witness before the Grand Jury was false, the Grand Jury testimony of the police officer/victim was sufficient to establish reasonable cause to believe that the defendant was the shooter].)
There is ample authority for this court to conclude that the fact that false testimony was adduced before the Grand Jury does not in itself warrant dismissal of the indictment. But this court's inquiry does not end at determining whether there exists sufficient evidence, aside from the false testimony, to support the indictment. The court must also address whether or not the irregularity in the proceeding resulted in potential prejudice to the defendant, so as to impair the integrity of the Grand Jury. As the Court stated in People v. Huston ( 88 NY2d 400, 409):
"CPL 210.35 (5) provides that a Grand Jury proceeding is defective when "the integrity thereof is impaired and prejudice to the defendant may result." The exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice (see, People v Di Falco, 44 NY2d at 487, supra). Although this statutory test "is very precise and very high" (People v Darby, 75 NY2d 449, 455, 554 NYS2d 426, 553 NE2d 974), it does not require actual prejudice (see, People v Sayavong, 83 NY2d at 709, 711, supra; People v Wilkins, 68 NY2d 269, 276, 508 NYS2d 893, 501 NE2d 542). Indeed, two earlier drafts of CPL 210.35 (5) required a showing of actual prejudice before an indictment could be dismissed as the result of defective Grand Jury proceedings. The Legislature, however, rejected a requirement of actual prejudice in favor of the current provision — requiring only that "prejudice to the defendant may result" (CPL 210.35 [emphasis added]; see, People v Di Falco, 44 NY2d 482, 487, 406 NYS2d 279, 377 NE2d 732, supra; Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 210.35, at 676).""Dismissal of indictments under CPL 210.35 (5) should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias."
The likelihood of prejudice in this case is clear and pronounced. As indicated above, and as defendant argues, the false testimony conflicted with key components of defendant's testimony. Defendant relied on a theory of justification, and thus he testified that he was bleeding from his face when he was approached by officers from a nearby precinct. His testimony suggested — consistent with his claims of innocence — that he was neither fleeing, nor hiding his face, nor attempting to avoid the police, when he was approached by a group of officers. Officer Harloff's false testimony that the defendant was apprehended by a single officer after the area was canvassed (1) made defendant's testimony appear to be fabricated; (2) suggested that if defendant lied about key details, he might be lying about his account of the events in toto; and (3) negated the inference that defendant was neither fleeing not hiding. Moreover, since Officer Harloff did not apprehend the defendant, he gave no testimony that the defendant was bleeding from the face; testimony which may well have further corroborated defendant's version of the events.
In short, the false testimony may well have caused the Grand Jury to reject the defense of justification entirely. Potential prejudice to the defendant is amply established on this record, and thus the court cannot in good conscience find that the integrity of the Grand Jury was not impaired by the presentation of false evidence.
Dismissal Under CPL 30.30
The defendant has, in addition, moved to dismiss this action on the grounds that he was denied a speedy trial pursuant to CPL 30.30. The instant criminal action was commenced for speedy trial purposes on April 28, 2008, when a felony complaint was filed. The People have six months (183 days) to be ready for trial.
The following time periods are to be considered:
• April 28, 2008 to May 2, 2008: 4 days charged.
• May 2, 2008 to June 16, 2008: The People filed a statement of readiness on May 23, 2008, and served a copy on defense counsel on May 27, 2008. A valid certificate of readiness is effective as of the date it is filed with the court, as long as defense counsel is promptly notified. See People v. Anderson, 252 AD2d 399, 400 (1st Dept 1998). 21 days charged.
• June 16, 2008 to June 17, 2008: Defendant was arraigned on June 17. The People had already filed a statement of readiness, and answered ready. 0 days charged.
• June 17, 2008 to August 27, 2008: The case was adjourned for open file discovery and submission of the Grand Jury minutes, in accordance with the practice in Kings County of submission of the Grand Jury minutes to the court for review as to sufficiency without the need for a formal written motion. See People v. Dorilas 19 Misc 3d 75 (App. Term, 2d Dept. 2008) (period of time during which parties engaged in discovery by stipulation was excludable). O days charged.
• August 27, 2008 to August 29, 200: The case was adjourned for a decision on the sufficiency of the Grand Jury minutes, on consent. 0 days charged.
• August 29, 2008 to September 29, 2008: Adjourned on consent. O days charged.
• September 29, 2008 to October 27, 2008: Adjourned on consent. O days charged.
• October 27, 2008 to November 20, 2008: Adjourned to complete discovery on consent. The file notation reads, "Medical records and grand jury minutes to be turned over. If not, charge the People." This was accomplished as instructed (see below). O days charged.
• November 20, 2008 to January 23, 2008: The minutes of the calendar call of November 20 ordered by the court indicate that the People had served medical records and grand jury minutes on defense counsel's office, and that defense counsel requested time to have an expert review the medical records. As the adjournment was at the request of and for the benefit of the defendant, O days charged. (The case was advanced on December 12 to December 17. On December 17, orders of protection were renewed, then adjourned back to the original date).
• January 23, 2009 to March 16, 2009: The minutes of the calendar call of January 23 indicate that defendant's trial counsel was not present, but that he was away on paternity leave. The People consented to the holding of a Wade hearing. The case was adjourned to March 16 for hearing and trial. O days charged.
• March 16, 2009 to April 8, 2009: The People were not ready. 15 days charged.
• April 8, 2009 to May 11, 2009: The People were not ready and requested May 4. The case was adjourned to May 11. 26 days charged. (The People conceded 33 days, but they were mistaken, as the court records indicate.)
• May 11, 2009 to May 25, 2009: The People were not ready, and requested May 25. The case was adjourned by the court to June 12. 14 days charged.
• June 12, 2009 to July 1, 2009: The minutes ordered by the court indicate that the defendant was not ready for trial. 0 days charged.
• July 1, 2009 to September 16, 2009: The People were not ready, and requested July 15. The case was adjourned by the court to September 16. 14 days charged.
• September 16, 2009 to October 5, 2009: The People were not ready, and requested September 30. The case was adjourned by the court to October 5. 14 days charged.
• October 5, 2009 to October 21, 2009: Defendant was not ready. 0 days charged.
• October 21, 2009 to November 18, 2009: The People announced they were not ready, made a record that Officer Harloff's Grand Jury testimony was false, and requested a two-day adjournment. 2 days charged.
• November 18, 2009 to December 16, 2009: The minutes as ordered by the court indicate that defendant's trial counsel was on trial before another judge. As defendant was not ready, 0 days charged.
• December 16, 2009 to January 20, 2010: The People assert announced they were not ready. The court file indicates that the People were to be charged until December 23. The case was adjourned to January 20. 7 days charged.
• On January 11, the instant motion was served.
The People contend that 124 days of chargeable time elapsed. The Court finds that 117 days elapsed. The People are within their allotted 30.30 time.
The court does not find that the People's statements of readiness were "illusory," as defendant now argues, based on the statements made by the officer which, it was eventually discovered, were untrue. A statement of readiness made at a time when the People are not actually ready is illusory, and is thus insufficient to stop the running of the speedy trial clock. (People v Cole, 73 NY2d 957, 958, 538 NE2d 336, 540 NYS2d 984). The governing standard is whether the People are able to present their case, and do so immediately — the People's statement or readiness must be made in good faith and reflect an actual, present state of readiness. (People v. Robinson, 171 AD2d 475, 567 NYS2d 401 [1st Dep't 1991].) The police officer's misrepresentations were relied upon by the People in good faith, and promptly reported to the court. It has been held that where a witness testified falsely in the Grand Jury, requiring the case to be re-presented, the People's statement of readiness based in good faith on the validity of the earlier indictment was not chargeable to the People. (People v. Rosario, 176 AD2d 830, 574 NYS2d 831 [2d Dep't 1991].)
CONCLUSION
The indictment is dismissed pursuant to CPL § 210.35 (5), with leave to re-present.
This is the Order of the Court.