Supreme Court, Monroe County, August 17, 2017

Paul Guerrieri for R.P., defendant.

Mark Cianca for M.R., defendant.

Sandra J. Doorley, District Attorney (Christine Callanan of counsel), for plaintiff.

Pursuant to section 210.30 of the Criminal Procedure Law, the defendants have moved the court to inspect the grand jury{**58 Misc 3d at 768} minutes and dismiss or reduce the indictment in the above-entitled case, upon the grounds that the evidence before the grand jury was not legally sufficient to establish the commission of the offenses charged in the indictment.

Further, said motions seek to dismiss the indictment on various grounds alleging that the grand jury proceedings were defective. Defendants are each charged within the indictment of one count of assault in the second degree in violation of Penal Law §§ 20.00 and 120.05 (4); [*2]and one count of reckless endangerment in the second degree in violation of Penal Law §§ 20.00 and 120.20.

The indictment is based on an incident which occurred on October 11, 2016, in the Town of Parma. On that date the defendants were engaged in shooting long guns at a bull's-eye target placed in a field along a line of trees. In another field some distance away an individual, identified as Kevin Flannery, who was operating a riding lawn mower, was struck with one of the bullets. The bullet first struck the seat of the mower and ricocheted into Flannery. Mr. Flannery suffered serious injury as a result of the wound, requiring extensive hospitalization and medical treatment.

Evidence submitted to the grand jury included testimony from Mr. Flannery, Monroe County Sheriff's Investigator Branagan and other deputies, and presentation of various photographs, including aerial pictures of the scene of the incident.

In the context of a motion to dismiss an indictment, the sufficiency of the People's presentation "is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury." (People v Jennings, 69 NY2d 103, 114 [1986].) The People are required to make out a prima facie case that the accused committed the crimes charged by presenting legally sufficient evidence establishing all of the elements of the crime. (Jennings at 115.) On a motion to dismiss, the reviewing court's inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy. Indeed, "all questions as to the quality or weight of the proof should be deferred" (id.). Legal sufficiency means competent evidence which, if accepted, would establish every element of the offenses charged and the defendants' commission thereof. (CPL 70.10 [1]; see People v Bello, 92 NY2d 523 [1998]; People v Mikuszewski, 73 NY2d 407 [1989].){**58 Misc 3d at 769}

On a motion to dismiss an indictment on the ground that the grand jury proceedings were defective by reason of the prosecutor's legal instructions or failure to give certain instructions to the grand jury, this court notes that "a Grand Jury need not be instructed with the same degree of precision" required for a petit jury. (People v Calbud, Inc., 49 NY2d 389, 394 [1980].) The prosecutor possesses similar discretion as a trial judge in giving legal instructions to the grand jury. (CPL 190.30 [7]; People v Darby, 75 NY2d 449, 454 [1990]; People v Santmyer, 255 AD2d 871 [4th Dept 1998], lv denied 93 NY2d 902 [1999].) Moreover, the prosecutor is not required to seek out evidence favorable to the defendant or present all their evidence tending to exculpate the accused. (People v Mitchell, 82 NY2d 509, 515 [1993]; People v Lancaster, 69 NY2d 20, 27 [1986]; People v Valles, 62 NY2d 36, 38 [1984].) Generally, it is sufficient if the prosecutor "provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime." (People v Calbud at 394-395; People v Douglas, 288 AD2d 859 [4th Dept 2001], lv denied 97 NY2d 681 [2001]; see generally People v Galatro, 84 NY2d 160, 163-164 [1994].)

This court has examined the grand jury minutes using the standards as set forth above.

Initially, review of the grand jury minutes reveals that the grand jury proceeding was not defective by reason of any improper, incomplete or incorrect legal instructions given to the grand jury nor any other defect in the way the proceedings were conducted. Further, this court finds [*3]that the evidence and legal instructions were submitted to a legally constituted grand jury. Thus, the defendants' motion to dismiss the indictment under CPL 210.35 is denied.

However, with respect to the defendants' motion pursuant to CPL 210.30 to dismiss the indictment on the ground of the insufficiency of the grand jury evidence, the court is compelled to reach a different conclusion, and, for the reasons set forth below, dismisses the indictment in its entirety as to both defendants.

The facts appear to present a case of first impression. A thorough search of relevant case law offers no instances where a defendant has been held criminally liable for firing a long gun in the direction of an open field, striking an individual a{**58 Misc 3d at 770} substantial distance away, and where the presence of the victim was not apparently visible to the shooter. Instead, the majority of reported decisions involve criminal prosecutions arising out of hunting accidents resulting in a death. (See Failla v Amodeo, 225 AD2d 965 [3d Dept 1996] [civil action following defendant's plea to reckless endangerment for accidently shooting a fellow turkey hunter]; People v Smith, 26 Misc 3d 206, 209 [Essex County Ct 2009] [court acknowledges "(t)here is surprisingly little New York case law involving hunting accidents and prosecutions for criminally negligent homicide" in shooting deaths]; People v Woodruff, 4 AD3d 770 [4th Dept 2004] [reckless manslaughter indictment in hunting accident reinstated where proof showed defendant left victim to die after shooting].)

Most other instances of reported decisions sustaining a reckless endangerment prosecution involve shooting into a public street or trafficked area. (See People v Sallitto, 125 AD2d 345 [2d Dept 1986]; People v Stanley, 108 AD3d 1129 [4th Dept 2013].)

The unique facts of the present case call for disclosure of some of the evidence presented to the grand jury, as set forth below. (See CPL 210.30 [3].)

Here, while the proof before the grand jury was overwhelming that the defendants' actions (shooting at a target placed in an open field) caused serious physical injury to Mr. Flannery, the facts and circumstances as presented, however, do not establish the defendants' criminal liability under a "reckless" standard.

A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct that creates a substantial risk of serious physical injury to another person. The determination whether reckless endangerment has been proved by legally sufficient evidence requires "an objective assessment of the degree of risk presented by [the defendants'] reckless conduct." (Matter of Kysean D.S., 285 AD2d 994, 995 [4th Dept 2001], quoting People v Register, 60 NY2d 270, 277 [1983]; see People v Davis, 72 NY2d 32, 36 [1988].) One acts recklessly

"with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of{**58 Misc 3d at 771} such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3] [emphasis added]).

In order to establish that a defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable. (See People v Reagan, 256 AD2d 487 [2d Dept 1998].)

The facts in People v Leonardo (89 AD2d 214 [4th Dept 1982]) offer the closest [*4]circumstances analogous to the present case.^[FN2] There, the Court dismissed the indicted charges of reckless assault, first degree and reckless endangerment, first degree, and interposed the lesser included crimes of reckless assault, second degree and reckless endangerment, second degree. The Court found the proof did not support the greater charges due to no showing of intent to cause serious physical injury.

As can be seen, however, evidence in Leonardo supporting the lesser included offenses differs significantly from the facts presented to the grand jury on the matter before this court. In Leonardo, the defendant shot into a sports field he knew to contain a baseball diamond, with a game in progress; he fired the gun in a "suburban community" (Leonardo at 218); and he took steps to cover up his acts, evincing consciousness of guilt.

Here, the defendants took no measures designed to cover up the shooting and, in fact, admitted to the target practicing, directing the deputies to the location where they had set up their target. They made no admissions indicating they visually{**58 Misc 3d at 772} saw or were aware of a person being present in a distant field. The defendants stated they had not used a "backstop" (berm or dirtpile) designed to absorb bullets, but believed they had been shooting into an open field.

While the Sheriff's Investigator testified that it was the practice at the department's shooting range to never shoot a weapon without a backstop, the defendants' statements, as recounted to the grand jury by the Investigator, contain no indications as to the defendants' training and experience with the weapons in question, or knowledge about the velocity and range of the ammunition that caused the wounds to Mr. Flannery. In fact, a search of relevant statutes and local ordinances fails to locate any law requiring a person engaged in target shooting to have in place an earthen backdrop or similar barrier.

Moreover, the photographs presented to the grand jury show that the "target area" set up by the defendants, and the location where Mr. Flannery suffered his injury, involved an expanse of at least two open fields; that there appeared to be a tree line some distance past the defendants' target, behind which Mr. Flannery was mowing a pathway; and that no houses, streets or developments were located in the path of the shooting. While Mr. Flannery described mowing "thirty acres," there is no evidence in the grand jury minutes (or contained in the photographs) setting forth the distance between the firing of the weapons and where the victim was struck. The pictures, however, depict a substantial distance between these locations.

[1, 2] At issue then, under the reckless endangerment or reckless assault charges, is whether the element of "recklessness" has been met. The facts as noted above not only fail to support, but negate the element of recklessness that the defendants were aware of and "consciously disregarded" a "substantial and unjustifiable risk." "Considering that the defendants' conduct did not amount to a conscious disregard of a known risk, the additional statutory element—that the disregard be so extreme as to be a gross deviation from a reasonable person's standard of conduct—is, a fortiori, not met." (See People v Reagan at 489-490 [emphasis added].)^[FN3]

{**58 Misc 3d at 773}Here, it cannot be said that the defendants' engaged in a "gross deviation" from a reasonable person's standard of conduct.

It should also be noted that the defendants were both charged under Penal Law § 20.00 as accomplices under a theory that they "acted in concert" with one another in firing weapons and injuring the victim.^[FN4] The grand jury was not presented with any ballistics evidence however to show which defendant's weapon caused the victim's injuries,^[FN5] or how one defendant solicited, requested, commanded, importuned or intentionally aided the other defendant to engage in the criminal conduct, or how they shared the same mental culpability. However, in light of the court's ruling that the element of "recklessness" has not been met, the court declines to further address the prosecution's theory of accomplice liability.

Accordingly, based upon the defendants' motion, the court finds that the People have failed to present legally sufficient evidence before the grand jury to establish the crimes of assault in the second degree and reckless endangerment in the second degree, and therefore dismisses the indictment in its entirety.

"The proof before the grand jury . . . shows that on . . . May 6, 1980, in Amherst, New York, defendant, then 32 years old, loaded one bullet into his father's .22 caliber rifle. Taking it outdoors, he aimed the rifle at a tree beyond which, he knew, was the baseball diamond of Park School. He pulled the trigger. The bullet missed the tree, striking and seriously injuring 11-year-old Kristin Hyland, who was watching her brother play in an after-school baseball game. Defendant took the rifle indoors, cleaned it to remove all traces of the firing, and put it away in its case. When police questioned him soon after the incident, defendant denied any involvement. His arrest took place over a year later, [when] he confessed to a counselor at a crisis center and then to the police. He told Detective Giambra of the Buffalo Police Department that he had been 'target shooting at a tree.' In his subsequent written confession he stated that he had been 'surprised and scared' when the gun fired because he had thought that he had unloaded it."