Opinion
No. 2010KN015215.
2012-01-26
The PEOPLE of the State of New York v. Ryan WARNOCK, Defendant.
Christopher Renfroe, Esq., Forest Hills, for Defendant. Ann Bordley, Joseph A. DiBenedetto, Kings County District Attorney's Office, Appeals Bureau, Brooklyn, for the People.
Christopher Renfroe, Esq., Forest Hills, for Defendant. Ann Bordley, Joseph A. DiBenedetto, Kings County District Attorney's Office, Appeals Bureau, Brooklyn, for the People.
JACQUELINE D. WILLIAMS, J.
On April 6, 2010, the defendant was arraigned on a felony complaint, charging him with one count of Riot in the First Degree (PL § 240.06(1)) and seven counts of Assault in the Third Degree (PL § 120.00(1)). The grand jury proceeding commenced on June 3, 2010, and concluded on June 18, 2010. The grand jury directed the district attorney to file a Prosecutor's Information against the defendant, which was filed July 29, 2010, by Assistant District Attorney Joseph DiBenedetto. The Prosecutor's Information charges the defendant with one count of Assault in the Third Degree (PL § 120.00(1)), a class A misdemeanor, and one count of Disorderly Conduct (PL § 240.20(1)), a violation.
The defendant has moved to dismiss the prosecutor's information pursuant to CPL § 170.50(1)(b) on the ground that the grand jury proceeding resulting in the filing of said prosecutor's information was defective due to the presence of an unauthorized individual during the grand jury proceeding.
BACKGROUND
By order dated April 20, 2010, by the Appellate Division, Second Department, Elizabeth Kurtz was admitted to practice law in New York pro hac vice and counselor-at-law on behalf of the Kings County District Attorney's Office. On April 22, 2010, the District Attorney appointed Ms. Kurtz a Special Assistant District Attorney. She took the constitutional oath of office. On June 11, 2010, Ms. Kurtz was admitted to practice law in the state of New York.
Ms. Kurtz was present in the grand jury room on June 7, June 8, June 9, and June 16, 2010. At the beginning of each of those proceedings, ADA DiBenedetto introduced her to the grand jury as “Assistant District Attorney Elizabeth Kurtz,” who was with him “for purposes of assistance and observation.” The grand jury minutes show that she did not speak with the grand jurors nor take any action before the grand jury. She did not make any decisions regarding the evidence introduced before the grand jury or the charges to be submitted to the grand jury. Ms. Kurtz was not present when charges were submitted to the grand jury. The minutes show that ADA DiBenedetto was the only one who presented evidence and submitted charges to the grand jury.
On June 18, 2010, the grand jury returned a prosecutor's information, charging Assault in the Third Degree and Disorderly Conduct.
On October 4, 2010, the District Attorney of Kings County appointed Elizabeth Kurtz as an Assistant District Attorney.
In his motion, the defendant contends that the grand jury proceeding was defective because it failed to conform to the requirements of Article 190 to such degree that the integrity thereof was impaired and prejudice to the defendant may result. CPL § 210.35(5). Specifically, the defendant asserts that Elizabeth Kurtz's presence in the grand jury room as a “Special Assistant District Attorney” was in violation of CPL § 190.25(3)
because the statute does not authorize either an intern, volunteer or a “Special Assistant District Attorney” to be present during grand jury proceedings
.CPL § 190.25(3) provides:
Except as provided in subdivision three-a of this section, during the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in addition to witnesses, may, as the occasion requires, also be present:
(a) The district attorney;
(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;
(c) A stenographer authorized to record the proceedings of the grand jury;
(d) An interpreter [ ... ];
(e) A public servant holding a witness in custody. [ ... ].
(f) An attorney representing a witness pursuant to section 190.52 of this chapter while that witness is present.
(g) An operator, as that term is defined in section 190.32 of this chapter, while the videotaped examination of either a special witness or a child witness is being played.
(h) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness twelve years old or younger who is called to give evidence in a grand jury proceeding [ ... ].
. See People v. Del Col, 88 AD3d 737, 930 N.Y.S.2d 488 (App.Div., 2d Dept.2011) (court found that district attorney lacked authority to appoint the “Special Assistant District Attorney” who presented the subject charges to the grand jury).
This court notes that a judge is not listed under CPL § 190.25(3) as a person who may be present during grand jury proceedings. By the defendant's logic, the presence of a judge in the grand jury room would also be in violation of CPL § 190.25(3).
The People responded by arguing that (1) defendant's claim should be rejected under the de facto officer doctrine and (2) the conduct of the special assistant district attorney did not impair the integrity of the grand jury proceeding or prejudice the defendant because she merely observed the grand jury presentation and did not take any action in the grand jury proceeding.
DISCUSSION
The defense counsel has asked that this court follow the ruling of People v. Del Col, 88 AD3d 737, 930 N.Y.S.2d 488 (App.Div., 2d Dept.2011), in which the Second Department affirmed an order to dismiss the indictment on the ground that the District Attorney lacked the authority to appoint the prosecutor who presented the subject charges to the grand jury. In that case, the prosecutor who presented the charges to the grand jury was a former assistant district attorney who had gone into private practice. The District Attorney had appointed the individual as a “Special Assistant District Attorney,” as indicated by a “constitutional oath of office” card filed with the County Clerk. People v. Del Col at 738.
On January 3, 2012, the Honorable Justice Mark Dwyer at the Supreme Court of Kings County decided a case similar to this one that addressed the instant issue. In People v. Ramos, 2012 N.Y. Slip Op 22003 (Sup.Ct., Kings County 2012), two out of twelve ADAs were “Special Assistant District Attorneys” (“Special ADAs”), who helped present testimony to the grand jury and submit charges to the grand jury regarding an indictment involving 42 individuals. One or both of the Special ADAs were observers in the grand jury. On the dates on which the Special ADAs introduced evidence and submitted charges to the grand jury, other Assistant District Attorneys were present in the grand jury room.
The court found that the Ramos case was distinguishable from that of People v. Del Col. The Ramos court made a distinction between “Special District Attorneys” and “Special Assistant District Attorneys.” After review of the parties' briefs, the Ramos court determined that the prosecutor in People v. Del Col was a Special District Attorney
, who prosecutes a case entirely independently of the county's district attorney and whose appointment was proper only if he had been appointed by a superior court in the manner specified in County Law § 701.
In the Del Col case, the subject matter was highly technical, requiring the prosecutor's particular technical expertise, which would have made supervision by the district attorney difficult. Secondly, the prosecutor was maintaining a practice independent of the District Attorney and was appointed a Special ADA for one case only. Thirdly, the defense made allegations which may have colored the Appellate Division's views. The Ramos court found that these circumstances had combined to cause the Appellate Division to determine in Del Col that the prosecutor was sufficiently independent and that he was actually the functional equivalent of a Special District Attorney.
In contrast, the two Special ADAs in People v. Ramos were not appointed to work on a particular case; they were full-time employees; they were carefully supervised when working on defendant's case; and the case required no special technological expertise that would have made supervision difficult. Thus, the circumstances did not suggest that a Special District Attorney was put in charge of the prosecution. Instead, the two Special ADAs in Ramos were supervised; they were appointed properly pursuant to County Law § 702
.County Law § 701. Special District Attorney:
1. Whenever the district attorney of any county and such assistants as he or she may have shall not be in attendance at a term of any court of record, which he or she is by law required to attend, or are disqualified from acting in a particular case to discharge his or her duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order:
(a) appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have; or
(b) appoint a district attorney of any other county within the judicial department or of any county adjoining the county wherein the action is triable to act as special district attorney, provided such district attorney agrees to accept appointment by such criminal court during such absence, inability or disqualification of the district attorney and such assistants as he or she may have.
; the normal paperwork was submitted to the County Clerk; and they took the requisite oath of office. Consequently, they did not need to be appointed and approved by a superior court to replace the district attorney. Rather, the two special ADAs worked for the district attorney.
“Notwithstanding any provision of law with respect to requirements of residence, a district attorney of a county within a city having a population of one million or more may appoint one or more assistant district attorneys who are not residents of such county, but who reside within the geographical territory of such city.” SeeCounty Law § 702(6).
The facts of the instant matter are analogous to that of People v. Ramos. Here, the Special ADA, Ms. Kurtz, was carefully supervised by the Assistant District Attorney on the record, Joseph DiBenedetto. Ms. Kurtz was a full-time employee, not appointed to work on any particular case. The instant case does not require special technical expertise that would make supervision difficult. By order of the Appellate Division, she was admitted to practice law in New York pro hac vice and counselor-at-law on behalf of the Kings County District Attorney's Office. The District Attorney appointed her a Special Assistant District Attorney and she took the constitutional oath of office. Accordingly, circumstances suggest that Ms. Kurtz was properly appointed as a Special Assistant District Attorney pursuant to County Law § 702. There is no basis suggesting that Ms. Kurtz was acting in the capacity of a Special District Attorney pursuant to County Law § 701.
* * *
In their response, the People made two arguments. First, Ms. Kurtz was a de facto officer whose acts as a public officer, performed under color of law, were valid and binding on the public, even if she were unlawfully appointed. Secondly, Ms. Kurtz's participation in the grand jury proceeding as an observer was so minimal as to not prejudice the defendant or impair the integrity of the grand jury proceeding in any way.
The Ramos court rejected these arguments, stating that if the Special ADAs were actually Special District Attorneys independent of the elected District Attorney, then they were prosecutors with no jurisdiction. A Special District Attorney who was not selected by a superior court judge lacks power over a case. Thus, the de facto officer doctrine would not help the People. People v. Ramos at 7. Similarly, if a prosecutor without jurisdiction participates in a grand jury presentation, the indictment “must be dismissed if there is even the possibility of prejudice.” Id at 7–8, citing People v. Sayavong, 83 N.Y.2d 702, 635 N.E.2d 1213, 613 N.Y.S.2d 343 (1994); People v. Di Falco, 44 N.Y.2d 482, 377 N.E.2d 732, 406 N.Y.S.2d 279 (1978); People v. Fox, 253 A.D.2d 192, 692 N.Y.S.2d 174 (App.Div., 3d Dept.1999). “For practical purposes, the possibility' of prejudice always exists when an unauthorized prosecutor conducts proceedings in the grand jury.” See Ramos at 8. Regardless of the minimal role that Ms. Kurtz played in the grand jury proceeding, if she were a Special District Attorney without jurisdiction, her appearance would be deemed prejudicial. For these reasons, both of the People's arguments are unavailing.
Nevertheless, because the facts demonstrate that Ms. Kurtz acted as an Assistant District Attorney and not an independent Special District Attorney, the defendant's contention that the grand jury proceeding was defective due to the presence of an unauthorized individual during said proceeding is without merit.
CONCLUSION
The defendant's motion to dismiss the prosecutor's information pursuant to CPL § 170.50(1)(b) on the ground that the grand jury proceeding was defective is denied.
This opinion constitutes the decision and order of the court.