Opinion
96 KA 17–00270
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Cory C. THOMPSON, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON, ROCHESTER, OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON, ROCHESTER, OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, robbery in the third degree ( Penal Law § 160.05 ), defendant contends that the grand jury proceeding was defective, and that County Court erred in refusing to grant his motion to dismiss the indictment on that ground. We reject that contention.
Pursuant to CPL 210.35(5), a grand jury proceeding is defective when "[t]he proceeding ... fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result." This provision "is the statutory equivalent of the common-law principle that an indictment issued by a legally constituted [g]rand [j]ury need not be dismissed because of a simple technical error if the accused was not prejudiced or the fundamental integrity of the process impaired" ( People v. Williams, 73 N.Y.2d 84, 90, 538 N.Y.S.2d 222, 535 N.E.2d 275 [1989] ). Consequently, "[d]ismissal under CPL 210.35(5) is limited to instances of prosecutorial misconduct, fraud, or errors that potentially prejudice the grand jury's ultimate decision" ( People v. Morales, 160 A.D.3d 1414, 1418, 76 N.Y.S.3d 682 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ; see People v. East, 78 A.D.3d 1680, 1680–1681, 910 N.Y.S.2d 755 [4th Dept. 2010] ).
Here, we reject defendant's contention that the proceeding was defective because the prosecutor gave perjury instructions regarding defendant's grand jury testimony to the same grand jury that indicted him on the set of charges upon which he was convicted, and that the court therefore erred in refusing to dismiss the indictment (see generally CPL 210.20[1][c] ). The record establishes that the grand jury voted to indict defendant on the first set of charges before the prosecutor gave the perjury instructions. Thus, the first set of charges could not have been impacted by those instructions. Furthermore, the court later dismissed the perjury charge, and thus defendant sustained no prejudice from that indictment.
Defendant failed to preserve for our review his contention that the court erred in imposing a collection surcharge of 10% of the amount of restitution (see CPL 470.05[2] ; People v. Rossborough, 160 A.D.3d 1486, 1487, 72 N.Y.S.3d 875 [4th Dept. 2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018] ; People v. Kirkland, 105 A.D.3d 1337, 1338, 963 N.Y.S.2d 793 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). The sentence is not unduly harsh or severe.