Opinion
07-265.
Decided January 10, 2008.
Peter N. DeLucia, Esq.
James M. Barber, Esq.
The defendant has moved pursuant to Section 210.30 of the Criminal Procedure Law for an examination of the stenographic minutes of the Grand Jury Proceeding for the purpose of determining whether the evidence before the Grand Jury was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the Grand Jury were sufficient, and seeks dismissal of the indictment for the insufficiency of the evidence or for other defects in the grand jury proceedings. (Criminal Procedure Law § 210.20.)
The People have interposed no objection to the Court's examination of the grand jury minutes and have provided same for the Court's review. Upon examination of the grand jury minutes the Court finds that release of said minutes to the defense is not necessary to assist the Court in making its determination on the motion. Accordingly, the defendant's request for release of the grand jury minutes to the defendant is denied.
The defendant stands charged with Driving While Intoxicated, in violation of Vehicle and Traffic Law § 1192, a class E felony. The felony status of the crime is based on a predicate conviction on July 13, 2004 for Driving a Motor Vehicle with .10,' in violation of Vehicle and Traffic § 1192[2], an unclassified misdemeanor.
The evidence before the Grand Jury established that during the evening of January 29, 2007, New York State Trooper Kevin Leniek's attention was drawn to the defendant's Blazer automobile because he was driving slowly. He estimated visually that he was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. He followed him and testified that the defendant was going about 20 miles per hour in the 30-mile per hour zone. At some point her verified this speed by radar. The defendant consistently maintained this speed up hill and down hill, including a steep hill, until he pulled over at the direction of the officer. He noticed no bad driving. He testified the defendant was driving on the right-hand side of the road. He testified that he pulled him over solely because of the slow driving. He also testified, in response to a line of questions from the Grand Jury regarding driving ten miles below the speed limit that he could have issued a ticket for driving too slowly on this basis, saying driving ten miles per hour below the limit is considered impeding traffic. The district attorney did not admonish the Grand Jury on the witness' advising on the law.
The trooper testified as to certain field sobriety tests conducted, his observations of the defendant's condition, the odor of an alcoholic beverage he detected from the defendant, the defendant's refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The trooper testified that in his opinion, the defendant was intoxicated.
The Grand Jury raised a number of questions: was there evidence other than just the officer's word; what was the law on pulling someone over, could the officer pull anyone over to run to [sic] test. The district attorney advised that in this case, there was no video evidence. He also advised that the officer cannot pull someone over for no reason. "In this case," he advised, "we would submit the reason he pulled him over was for slow driving, the Vehicle Traffic Law, driving too slowly." This instruction was misleading, as there is no such charge. The only possible charge, provided for in Vehicle Traffic Law § 1181, entitled Minimum speed regulations, provides under subdivision [a] that "no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law." The district attorney did advise that the defendant "has a vehicle to challenge" the basis for the stop. He did not advise that this opportunity would only arise following their return of an indictment or direction to file a prosecutor's information.
On the stop issue, the Court notes that the conduct as described by the officer, driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation of § 1181[a]. The conduct as described, could not provide a basis for stopping the defendant's vehicle. While it was accurate to advise that the question of the stop is one the Court would address on a motion to suppress, it was error to leave the Grand Jury with the impression that the defendant was in violation of the law for driving ten miles below the speed limit on empty roads at night. See, for example, People v. Beeney, 181 Misc.2d 201.
This was not the only error. The Grand Jury was advised that it would be asked to consider the one charge of driving while intoxicated as a class E felony based on one prior conviction within the preceding ten years. In support of the predicate, the district attorney offered into evidence a certificate of conviction from the Town of Vestal Justice Court. "If, however, more than 12 of you do not find there is reasonable cause to believe and legally sufficient evidence to establish that, then and only then can you consider that lesser-included offense, driving while ability impaired by alcohol, 1192, subdivision 2, of the Vehicle and Traffic Law." Later, after the witness had been recalled to testify, a Grand Juror asked, "we are being asked to vote on the DWI charge. If it goes to — when it goes to trial, would the jury be able to find him on a lesser charge than that, only charged on DWI?" The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. A juror then asked, "now you've charged us with deliberating on a DWI as a class E felony. If we could not come to a 12 vote majority, at least 12, there's only 22, then we could consider the DWI?" Although unclear whether he meant to say DWAI, or meant DWI as a misdemeanor, it is clear the grand juror was asking whether they could consider any lesser charge. The district attorney reviewed the instruction stating:
"If considering this DWI of driving while intoxicated, section 1192, subdivision 3, and more than 12 of you do not find there is reasonable cause and a legally sufficient case to establish that, then and only then can you consider the lesser-included offense of driving with ability impaired I just defined it to you, the rubric there." (Emphasis added.)
This instruction was error and alone warrants dismissal.
CPL § 210.35 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. The statutory test is very precise and very high, People v. Darby, 75 NY2D 449,455.
Since dismissal of an indictment is an extraordinary remedy, it should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury. Flaws, errors or even skewing need not require a dismissal. See Darby, supra at 455. Not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. The submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment. People v. Avant, 33 NY2D 265, 271 Likewise, isolated instances of misconduct will not necessarily impair the proceedings . . .However, in rare cases where irregularities in presenting the case to the Grand Jury rise to the level of impairing those proceedings and creating the risk of prejudice, "the indictment [can]not be permitted to stand even though it is supported by legally sufficient evidence." ( People v. Calbud, Inc., 49 NY2d 389 , at 395.) People v. Huston, 88 NY2d 400, 409-410. The likelihood of a potential for prejudice [requires] that some specific theory of prejudice must be identified in order to justify a dismissal under the statute. People v. Adessa, 89 NY2d 677.
In this case, the instruction that more than 12 grand jurors must decide the evidence insufficient to support the DWI charge before they could consider the DWAI charge was improper and usurped the Grand Jury's function.
"It is, of course, within the broad discretion of the People to determine which offenses to submit for a Grand Jury's consideration. People v. Di Falco, 44 NY2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732; People v. Eboli, 34 NY2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746. The People may seek an indictment for the highest crime the evidence will support and are not required to present to the Grand Jury every defense that the evidence may suggest. People v. Valles, 62 NY2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418; see also, People v. Lancaster, 69 NY2d 20, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied, 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697 (1987). Notwithstanding the broad latitude accorded the District Attorney in the prosecution of crime within his or her jurisdiction, the authority of the Grand Jury, independent of the prosecutor, is both singular and paramount. It is the Grand Jury, and not the prosecutor, that makes the ultimate decision of whether and for which crimes a person shall be prosecuted. People v. Lancaster, supra, 69 NY2d 20, 25, 511 N.Y.S.2d 559, 503 N.E.2d 990; People v. Valles, 62 NY2d 36, 40, 476 N.Y.S.2d 50, 464 N.E.2d 418 (Kaye, J., concurring). Although the independence of the Grand Jury has been questioned . . . that body does, as it surely should, often serve as the bulwark between innocent people and overzealous or misinformed prosecutors. See, Matter of Keenan v. Gigante, 47 NY2d 160, 167-168, 417 N.Y.S.2d 226, 390 N.E.2d 1151, cert. denied sub nom. Gigante v. Lankler, 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 118.
"In order to assist lay grand jurors in discharging their extraordinary authority, the Court and the District Attorney are designated their legal advisors. See CPL 190.25(6). Although no statutory provisions elaborate upon that advisory role, the Court of Appeals has held that the prosecutor, in instructing the Grand Jury, is not held to the same standards of precision and thoroughness as a trial court in its instructions to the petit jury. People v. Calbud, Inc., 49 NY2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140; People v. Caracciola, 78 NY2d 1021, 576 N.Y.S.2d 74, 581 N.E.2d 1329. Nonetheless, if the role of legal advisor is to have any substance, the presenting ADA must be sufficiently accurate and informative in the instruction to enable the Grand Jury to decide which crime, if any, has been committed. People v. Calbud, supra, 49 NY2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140. The ADA must not provide instructions that are "so misleading or incomplete as to substantially undermine the integrity of the proceedings." People v. Caracciola, 78 NY2d 1021, at 1022, 576 N.Y.S.2d 74, 581 N.E.2d 1329. See, People v. Malave, 124 Misc 2d 210, 476 N.Y.S.2d 422 (Sup.Ct., NY County 1984); People v. Morrell, 134 Misc 2d 1011, 513 N.Y.S.2d 925 (Sup.Ct., NY County 1987); People v. Arajuo, N.Y.L.J., July 31, 1992, p. 22, col. 5 (all dismissing the indictment because of inaccurate instruction).
"The ADA was entitled to make her own initial evaluation of the case and to submit the charges accordingly. People v. Di Falco, supra, 44 NY2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732; see also, People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705. But once the Grand Jury expressed dissatisfaction with the submission and inquired whether there were other less serious charges that could be considered, she was obliged to respond accurately and to oblige them. Cf., People v. Crumbaugh, 156 Misc 2d 782, 594 N.Y.S.2d 553 (Sup.Ct., Bronx County 1993). The failure to do so constituted a usurpation of the Grand Jury's independent role and impaired the integrity of the proceedings." People v. Francis, 166 Misc 2d 476, 478-480, 634 N.Y.S.2d 639,**641 — 642 (N.Y.Sup.,1995)
In this case, it is simply inaccurate that the Grand Jury must have decided to no bill the DWI charge before it could have considered DWAI. CPL § 300.50, applicable to trial juries, is not applicable in the Grand Jury. Likewise, it is inaccurate that more than 12 must so decide. In this case, DWAI is a lesser included offense, and a reasonable view of the evidence clearly could support a finding of that offense. Additionally, the Grand Jury also had the right to consider DWI as a misdemeanor, as it is a lesser charge of DWI as a felony. Since the only evidence establishing the predicate offense was the certificate of conviction, the Grand Jury could have chosen to reject that evidence, and if it found the defendant had been operating a motor vehicle while intoxicated, indict only for the misdemeanor. This latter point brings up for consideration the manner in which the certificate of conviction was introduced in evidence to establish the predicate. In this case, that evidence, if credited by the Grand Jury, was sufficient to establish that the defendant did have a predicate conviction. It bears reminding, however, that like any evidence before it, the Grand Jury may accept or reject it. The certificate of conviction is not evidence that establishes the predicate as a matter of law. There is no question but that courts have found that a certificate for a named individual with a particular date of birth is sufficient to establish that the target of the investigation is the same person as identified in the predicate. That said, however, it is still up to the Grand Jury to accept or reject that evidence. See, People v. Richards, 266 AD2d 714; People v. Rattelade, 226 AD2d 1107; c.f., People v. Van Buren, 82 NY2d 878, 880.
While not so specifically stating, the manner in which the evidence of the predicate was presented to the Grand Jury suggested the certificate as in fact relating to this defendant. While not making a finding of fact that the prosecutor did so in this case, prosecutors generally should be reminded that in presenting such certificates, they must not offer them as in fact relating to the target of the investigation, as such amounts to testifying before the Grand Jury.
Finally, Grand Juries have the power and the right to exercise lenity in any given case. "Unlike a petit jury's obligation to convict upon being convinced beyond a reasonable doubt, the Grand Jury's authority to indict upon a showing of sufficient evidence is permissive only (CPL 190.65; 1 CJI [NY] 1.03, p. 10; LaFave Israel, Criminal Procedure, at 620, n 3; Note, Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590). CPL 190.65(1) provides that a grand jury may indict a person for an offense when * * * the evidence before it is legally sufficient to establish that such person committed such offense (emphasis added). Consistent with centuries of history ( see, People v. Valles, 62 NY2d 36, 42-44, 476 N.Y.S.2d 50, 464 N.E.2d 418 [Meyer, J., dissenting]; Kuh, Grand Jury "Presentment": Foul Blow or Fair Play?, 55 Colum.L.Rev. 1103, 1108), CPL 190.65 allows the Grand Jury to decide that an excessively technical application of the law upon a particular defendant would work an unfairness that would be contrary to the conscience of the community (LaFave Israel, Criminal Procedure, at 620). This power to extend lenity does not present it solely with the extreme choices of complete absolution or indictment on the top count supported by legally sufficient evidence. The Grand Jury, unlike the petit jury ( People v. Scarborough, 49 NY2d 364, 371, 426 N.Y.S.2d 224, 402 N.E.2d 1127; People v. Discala, 45 NY2d 38, 43, 407 N.Y.S.2d 660, 379 N.E.2d 187), is permitted to mitigate the harshness of the law by returning a true bill for only a lesser ***offense (LaFave Israel, Criminal Procedure, at 620). In contrast, in the context of the petit jury, the mercy-dispensing power is a thing apart from the true duty imposed upon a jury * * * it is, rather, an inevitable consequence of the jury system ( People v. Mussenden, 308 NY 558, 562, 127 N.E.2d 551; cf. People v. Tucker, 55 NY2d 1, 7-8, 447 N.Y.S.2d 132, 431 N.E.2d 617)." People v. Sullivan, 68 NY2d 495, 500 (internal quotation marks omitted.)
Thus, it appears plain to this Court that the restriction imposed by the district attorney on the Grand Jury, that it must first decide the insufficiency of the evidence as to DWI before it could consider DWAI, was error that prevented the Grand Jury from evaluating the case as they had a right to do. Requiring that more than twelve so decide compounded this error, as well as being error itself.
Given these errors, the Grand Jury was denied its right to evaluate and consider all the relevant and reasonable charges and actions available to it. The indictment is dismissed.
It is so ordered.