Opinion
311105.
Decided August 11, 2005.
On consent the Court has inspected the Grand Jury minutes in this action. Based on this review the Court finds that the evidence adduced is legally sufficient to support the FIRST, SECOND and FOURTH COUNTS of the indictment. People v. Jennings, 69 NY2d 103, 115 (1986). Additionally, the prosecutor correctly charged the Grand Jury on the applicable law with respect to these counts. People v. Calbud, Inc., 49 NY2d 389 (1980).
The THIRD COUNT stands on different footing and for reasons discussed hereafter is DISMISSED. There was testimony before the Grand Jury from two prosecution witnesses that the possession of the subject firearm occurred in defendant's home at 719 Kingsborough Walk, Apt. 3C, Kings County (Transcript, May 3, 2005 at 6 and 15). These witnesses quoted defendant during the incident telling others to get out of his house. The firearm in question was recovered by Police Officer Paulo from an open closet in the bedroom at that address out of which defendant walked (Transcript, May 4, 2005 at 6). There was conflicting evidence on this issue in the form of pedigree information taken from defendant by Officer Paulo also presented to the Grand Jury that defendant's address is 1271 Jefferson Avenue, Brooklyn (Transcript, May 4, 2005 at 9). As such the Grand Jury was entitled to weigh that conflicting evidence and decide to indict defendant for crimes committed not in his home, or decline to do so. On May 6, 2005, upon being charged on various counts, including Criminal Possession of a Weapon in the 3rd Degree (Penal Law § 265.02-4), which included the element of "not in such person's home or place of business", the Grand Jury found "No True Bill" for that count. (Transcript, May 6, 2005, vol. 1 at 21).
At the same time the Grand Jury voted to indict defendant for Criminal Possession of a Weapon in the 2nd Degree, the FIRST COUNT, which contains the added element of "intent to use unlawfully . . ., " but no element regarding place of occurrence and Criminal Possession of a Weapon in the 3rd degree, Penal Law 265.02 (1), the SECOND COUNT, an enhanced non-violent felony, which also has no element regarding place.
This prompted the prosecutor to return to the same Grand Jury later that day to present an additional count based upon the same evidentiary record, namely Criminal Possession of a Weapon in the 3rd Degree, Penal Law § 265.02 (5) (ii), an enhanced violent felony count, which contains the same necessary element that "such possession not take place in the person's home . . .". The prosecutor failed to charge that element, however, and obtained a True Bill for that enhanced count.
Finally, recognizing this mistake the prosecutor returned again to the Grand Jury that same afternoon, told the Grand Jury to disregard the earlier incorrect charge and proceeded to recharge the Grand Jury properly on the same enhanced count of Penal Law § 265.02 (5) (ii), this time including the required instruction that the possession not be in defendant's home. However, the prosecutor first marshalled the evidence (without a specific request by the Grand Jury to do so), excluding all references to the statements attributed to defendant in the record that this was his house, but including Officer Paulo's testimony that "Michael Wilkinson's home address was 1271 Jefferson Avenue, Brooklyn, New York." (Transcript, May 6, 2005, vol. 2 at 4). The result was that a True Bill was voted for this count.
Under these circumstances I view the procedure followed by the prosecutor as too likely to have misled the Grand Jury, and to have otherwise interfered with its prerogative to decide whether the element that ". . . such possession did not take place in the person's home . . ." was supported by reasonable cause and how to vote on that count. See, People v. Shammas, 5 Misc 3d 702, 707 (Crim Ct, Kings County 2004). In other words, I conclude that this procedure impaired the integrity of the Grand Jury process and may very well have caused prejudice to defendant by steering the Grand Jury to vote a True Bill on that count. People v. Huston, 88 NY2d 400 (1996). While there is conflicting authority regarding whether repugnancy applies at all in the Grand Jury, the THIRD COUNT is inconsistent with the No True Bill voted earlier by the same Grand Jury with respect to the Penal Law § 265.02(4) count. This alone may not necessarily require dismissal, but the the inconsistency exacerbated the problem. It appears from my review of the record far more likely that, but for the procedures followed by the prosecutor, the Grand Jury would have voted in accordance with its earlier decision by declining to indict defendant on the THIRD COUNT. The THIRD COUNT is therefore DISMISSED.
See, People v. Galatro, 84 NY2d 160, 165 (1994); People v. Jiminez, 223 AD2d 558 [2nd Dept. 1996], lv denied 88 NY2d 849 (1996); People v. Cummings, 155 Misc 2d 970 (Sup Ct, Kings County 1992); compare, People v. Lin, 169 Misc 2d 689 (Sup Ct, Kings County 1996).
IT IS SO ORDERED.