[*1]
People v Burnett
2004 NY Slip Op 50290(U)
Decided on March 31, 2004
City Court Of Rochester
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through August 31, 2023; it will not be published in the printed Official Reports.


Decided on March 31, 2004
City Court Of Rochester


THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

GWENDOLYN EILEEN BURNETT, Defendant.




Case No. 0308605



Nancy Gilligan, ADA, for plaintiff. Kelly Gormley, APD, for defendant.

Thomas Rainbow Morse, J.

The defendant, Gwendolyn Burnett, was originally charged by way of felony complaint with three felony offenses.[FN1] After presentation of evidence to a Monroe County Grand Jury, the felony charges were no billed [FN2] and a prosecutor's information was filed charging the defendant with three misdemeanors.[FN3] Following her local court arraignment, the defendant moved through her attorney for inspection of the Grand Jury Minutes and dismissal of the charges based upon allegations of insufficient evidence before the Grand Jury and defective Grand Jury proceedings.[FN4] The People opposed dismissal of the charges on those grounds, however, they provided the [*2]Grand Jury Minutes to the Court for an in camera inspection.[FN5] Upon review of those minutes the court dismissed the charges in an oral decision on September 29, 2003. Subsequently, the People brought a motion to re-argue, which the court granted and the matter was adjourned to give both parties an opportunity to be re-heard. Following oral argument by both parties the court now re-affirms its earlier oral decision in this written opinion.[FN6]

New York is only one of nineteen states which still constitutionally compel the common law tradition of presentation of evidence in a felony matter to a Grand Jury.[FN7] As "a buffer between the State and its citizens, the Grand Jury shields against prosecutorial excesses and protects individuals from unfounded prosecutions." [FN8] A Grand Jury conducts its business in secret,[FN9] not in a public adversarial proceeding wherein counsel for the individual being investigated participates. Accordingly,

[b]ecause Grand Jury proceedings are conducted by the prosecutor alone, this function confers upon the prosecutor broad powers and duties, as well as wide discretion in presenting the People's case. In addition to providing legal instruction to the Grand Jury, the District Attorney determines what evidence to present to that body and what evidence should be excluded. The prosecutor's discretion during Grand Jury proceedings, however, is not absolute. As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus "charged with the duty not only to secure indictments but also to see that justice is done". With this potent authority, moreover, comes responsibility, including "the prosecutor's duty of fair dealing".[FN10]


[*3]While there are a number of grounds for a motion to dismiss based on Grand Jury minutes, the overwhelming majority of cases in which courts have been asked to dismiss charges involve sufficiency of the evidence and adequacy of the instructions received by the grand jury.

Legally Sufficient Evidence

In assessing whether "[t]he evidence before the grand jury was... legally sufficient to support the charge,"[FN11] the "inquiry of the reviewing court is limited to ascertaining the 'legal sufficiency' of the evidence. The court's responsibility does not include weighing the proof or examining its adequacy at the Grand Jury stage, or determining whether there was reasonable cause to believe the accused committed the crimes charged as resolution of such questions is exclusively the province of the Grand Jury." [FN12] The court cannot re-evaluate the credibility of witnesses but must consider the evidence in a light most favorable to the People.[FN13] The fact that "other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference." [FN14] Nonetheless, those standards do not completely relieve the court of its responsibility to determine if the People provided sufficient testimony or physical evidence before the Grand Jury to constitute "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof."[FN15]

In this case, the court finds that sufficient evidence was presented to the Grand Jury to allow its members to "rationally have drawn the guilty inference" from the testimony and exhibits presented. It is certainly not the province of any court to second guess that decision once the statutory threshold has been met.[FN16] In this case, it is the prosecutor's potential effect on the integrity of the Grand Jury's decision making process which has been the focus of the court's concern.

[*4]Adequacy of the Legal Instructions

It is beyond question that a prosecutor is not required to instruct the Grand Jury with the same detail that a judge must relate to a trial jury. As noted by the Court of Appeals,

the difference in the extent and quality of the legal instructions that must be given to the two bodies is reflected in the Criminal Procedure Law, which, on the one hand, directs the court or District Attorney to give legal instruction to the Grand Jury only "[w]here necessary or appropriate", but, on the other hand, requires a Judge presiding over a trial before a petit jury to state in detail "the fundamental legal principles applicable to criminal cases in general" as well as "the material legal principles applicable to the particular case" and "the application of the law to the facts". In view of the divergent functions of the two bodies, we hold that a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law. We deem it sufficient if the District Attorney 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. In the ordinary case, this standard may be met by reading to the Grand Jury from the appropriate sections of the Penal Law.[FN17]


In this case, the prosecutor [FN18] read the sections of the Penal Law which applied to this case with sufficient clarity and completeness to satisfy the District Attorney's responsibilities in that regard. The comments of the prosecutor in this case, however, were not simply limited to reading of the applicable sections of law. As noted earlier, this court's concern with the sui generis facts of this case is that the prosecutor's repeated insistence that the most appropriate charges for the grand jurors to consider were the misdemeanor charges so "impaired the integrity of the grand jury proceeding as to require dismissal"[FN19] of the prosecutor's information with leave to re-present the case to another grand jury or, if the prosecutor so chooses, to simply file a misdemeanor information.


Analysis of this Grand Jury Proceeding

As noted earlier, the importance an independent Grand Jury stretches back centuries in Anglo-American law. From its beginnings through our present constitutional provisions, it has exercised a "protective role" shielding "citizens from unfounded prosecutions and governmental overreaching."[FN20] In its consideration of evidence, "the proceedings of...a grand jury from [*5]inception to final conclusion are presumed to be regular and proper,"[FN21] and a prosecutor enjoys the same presumption that he or she will not "do anything contrary to...official duty, or omit anything which...official duty requires to be done." [FN22] Unless "specific proof" constituting "substantial evidence" is presented, these presumptions of regularity are not overcome.[FN23]

In assessing the conduct of a District Attorney in presenting evidence to a Grand Jury, the Court of Appeals has noted that dismissal of charges voted by a Grand Jury based on defective proceedings is an "exceptional remedy" wherein the "... statutory test 'is very precise and very high.' " [FN24] In such cases,

...dismissal of an indictment due to a defective grand jury proceeding should be limited "to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias. Certainly, not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment. Likewise, isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice.[FN25]


For those reasons, the Court of Appeals has held that although the statute "does not require a showing of actual prejudice, there must be an articulable 'likelihood of' or at least 'potential for' prejudice....some specific theory of prejudice must be identified in order to justify a dismissal."[FN26] Therefore, "[a]bsent a breach of statutory command or some indication of likely prejudice, there is no legal basis for interfering with the prosecutor's prerogatives in determining the manner in [*6]which a Grand Jury presentment is made."[FN27]

While the people appropriately argued the strength of the proof during oral argument, it is equally clear that "the degree of inappropriate prosecutorial influence or bias" is a discrete factor a court should consider is assessing the likelihood of prejudice under the facts of a particular case.[FN28] Such improper influence need not be motivated by animus toward the defendant or bad faith in the actions of the prosecutor, and the court finds no evidence of either in this case. Nor is it an isolated improper comment by the prosecutor which concerns this court. What has troubled this court and caused the action taken today were the prosecutor's pervasive and persistent comments characterizing the misdemeanor charges as the more appropriate offenses for them to consider. Those instructions to the Grand Jury were in response to their requests for clarification and the minutes reveal a very real possibility that they felt compelled to acquiesce to the prosecutor's repeated directions. In the court's view, the collective impact of those comments "incontrovertibly indicate prosecutorial involvement in the Grand Jury's deliberative process"[FN29] to the extent that they created a palpable possibility that "the prosecutor's actions...impaired the integrity of the proceedings to the defendant's prejudice."[FN30]

It has been suggested that the defendant in this case was not actually prejudiced because the grand jurors were told that the most appropriate charge would be a lesser included misdemeanor rather than the originally charged felony. Putting aside for a moment the argument that such repeated instructions could well have thwarted any consideration by individual grand jurors of a "no bill", it is important to note again that demonstration of actual prejudice is not the applicable standard. As noted by the Court of Appeals, "the governing inquiry focuses not on whether a defendant was actually prejudiced, but on whether some conduct during Grand Jury proceedings created the possibility of prejudice to a defendant." [FN31]

Applying the "possibility of prejudice" test to defense counsel's argument that the prosecutor's repeated comments could have chilled consideration of a "no bill" by individual grand jurors raises several issues including: whether the prosecutor's repeatedly expressed opinions on the evidence vitiated the presumption of regularity and compromised the grand jury's deliberative process in this particular case; whether such an intrusion, if found, created the possibility of prejudice to the defendant in this case; the cumulative effect of a number of such grand jury presentations on an entire grand jury term; and, the impact on the constitutionally protected right of each grand juror to be an unfettered, independent voice of the community.

Compromising the Integrity of the Deliberative Process

First, just as this court in reviewing the Grand Jury minutes cannot substitute its [*7]judgment on the facts for those of the grand jurors, neither may a prosecutor presume to tell a grand juror how he or she must decide the facts of a case because the grand jury is the "exclusive judge of the facts with respect to any matter before it".[FN32] Although a prosecutor must instruct the grand jurors on the legal significance of the testimony in light of the appropriate rules of evidence,[FN33] nothing in the statutes or case law gives the prosecutor authority to tell the grand jurors how they should decide the facts.[FN34] Thus, while statements suggesting inferences which should be drawn from the evidence are essential to adversarial practice before a trial jury, they are unsuitable in a grand jury presentation.

For a prosecutor to tell a grand jury that "based on the evidence that has been presented and the evidence in this case" misdemeanor charges are "more appropriate", is an expression of the prosecutor's personal beliefs regarding the inferences to be drawn from the testimony presented. While perhaps harmless error when uttered once, when coupled with four separate instances where the prosecutor informs the grand jury that as their "legal advisor" the misdemeanor charges are "the more appropriate charges." it becomes tantamount to the legal advisor of the Grand Jury directing their verdict. However, "[i]t is simply not permissible for a District Attorney to inform grand jurors, who by statute and Constitution, have the unique responsibility to decide whether to vote an indictment, that as a matter of law the prosecutor has already determined that there is enough evidence to warrant the action." [FN35] It intrudes on the fact finding process which is left to them alone. Such repeated instructions from a quasi-judicial officer collectively compromise "[t]he cardinal purpose of the Grand Jury...[which] is to act as a shield against prosecutorial excesses."[FN36]

While it might be argued that any potential error was cured by reminding the grand jurors that the ultimate decision was theirs, a reading of the entire collogue on the law belies that thought. Rather than providing balance, the qualifiers which preceded or followed the prosecutor's remarks regarding the grand juror's decision making role leave little doubt a real possibility existed that the grand jurors believed they were being told how to vote this case.[FN37] The [*8]validity of this position is illustrated by a grand juror's questioning whether "we still have to vote then on the first three even though you're suggesting how to consider them, still have to do a voting on those?" Based on the numerous exchanges between the prosecutor and grand jurors within the context of the all the legal instructions given in this particular case, this court finds that the cumulative effect of the prosecutor's comments clearly constituted a "breach of a statutory command" to instruct the grand jury on the legal significance of facts only as they may relate to evidentiary issues and was "contrary to the official duties" of an impartial prosecutor before the Grand Jury pursuant to statute and common law. Those comments negated the presumption of regularity normally accorded the prosecutor and intruded on the grand jury's deliberative process impairing the integrity of the proceeding . Such a finding, however, is not dispositive since the court may not dismiss the prosecutor's information unless it also finds that those actions could potentially have prejudiced this particular defendant.

The Potential for Prejudice

Nowhere in that extensive discussion of the appropriate charges or in the prosecutor's "curative" instruction is there any indication in the record that a "no bill" was an equally available alternative for the grand jury to consider. In recognizing this fact, the court is not suggesting that a prosecutor should be required in each case to instruct a grand jury that they may "no bill" a case if they choose, for that is included as part of the general instructions given a grand jury when they are impaneled. In the court's view, however, given the specific discussion on the law that transpired in this particular case the prosecutor's silence in that regard is deafening. That is especially so given that during this presentation the prosecutor made a specific request that the grand jury "no bill" one of the original local court charges. In reviewing an analogous case with facts admittedly more egregious than those presented her, the Court of Appeals noted that improper instructions "delivered to laypersons carries an unacceptably high risk that they might misconstrue or undervalue their own role in reviewing the evidence...."[FN38] The earlier cited grand juror's question regarding whether a vote was necessary on the original charges is one example of a grand juror undervaluing his or her role. Another was exhibited by a grand juror's assessment of the weight of the prosecutor's opinion when the juror told the prosecutor " I think we're all thinking as, seems you know more than we know." While that is certainly almost always the situation since a prosecutor need not present all available evidence to a grand jury, the comment in the context of the discussion which took place in this particular case provides potent proof of the extent to which this particular grand jury may have felt compelled to follow the suggestion of the "most knowledgeable" person in the room rather than voice its own independent opinion. Since "[e]ven when the People's witnesses are credited, the grand jurors and the prosecutor will not invariably see eye to eye about what the evidence establishes,"[FN39] it is incumbent that the prosecutor, as quasi judicial officer, to make sure the grand jurors decide the case on their own and not by "prosecutorial fiat."[FN40]

This narrowing of the grand juror's focus to only one of three alternatives had real [*9]potential to blur their view of the other two choices in this particular case. Our system of justice requires that in each case, the grand jury clearly understand that the only facts that count are the facts they find during their deliberations. Since a "Grand Jury exercises its discretion not only in determining that legally sufficient evidence and reasonable grounds exist to force the accused to trial on the merits, but also in charging a greater or lesser offense, or in charging a single or numerous counts," [FN41] a prosecutor's statements which give rise to a perception by the grand jurors that they should do what the prosecutor suggests because he or she knows "the rest of the story," undermine the role of an independent grand jury. The court finds that under the unique facts of this case, the repeated instructions on the "appropriate" charges by the legal advisor to the grand jury, created a distinct possibility that neither the more serious felony charges or lesser "no bill" were presented as serious alternatives. The prosecutor's repeated instructions that the original charges were inappropriate when coupled with an instruction to "no bill" only one of the charges had a real potential to direct the grand jury away from choices which were "too hard" or "too soft" on the defendant and come to rest on the charges which in the opinion of the prosecutor were "just right."

This court cannot divine what the Grand Jury might have decided based on the testimony had these repeated exchanges not taken place. Nor can it make a factual determination that there was absolutely no possibility of a "no bill" as that would require reading the minds of and seeing into the hearts of the grand jurors as they deliberated. The applicable standard, however, does not require such certainty of prejudice. Especially with no mention at all of the possibility of a "no bill" as to testimony as a whole, under the sui generis facts of this case, the court finds "specific proof" of "prosecutorial involvement in the Grand Jury's deliberative process" which provides "substantial evidence" that a specific, identifiable prejudice to the defendant in this case could have resulted.

The Cumulative Effect

While this court's sole responsibility in this case is to review these particular grand jury minutes, it is unlikely that this was the only case heard by this grand jury during its term. Accordingly, while not the basis for this court's decision today, it is important to note that perhaps an even more pernicious issue raised by the "legal" instructions in this case is the possibility that they might be replicated in other presentations by this or other prosecutors. It is not unreasonable to imagine that like any group sequestered over time, a grand jury might have institutional memory,[FN42] and develop its own personality. In fact, based on the record in this case, it may well be that this particular prosecutor felt pressured by one or two tenacious grand jurors to cross a line which normally this prosecutor would avoid. The perhaps greater danger presented in this case is that over a four week term these or other individual grand jurors might be less disposed to express their own views during deliberation of other cases after having had the grand jury's legal advisor repeatedly tell them in one or more cases which action would be more appropriate for them to take.

The cumulative effect such presentations on a grand jury's entire term would evade review since the empaneling court oversees the grand jury only while it sits and that judge rarely reviews minutes from that term to assess the vitality of the grand jury as an independent deliberative body. After the term is over, individual judges sitting in several superior and local courts may review separate grand jury minutes without comparing notes with each other(as this [*10]court has done). In such circumstances, each court is only "looking at the trees, not the health of the entire forest." Therefore, it may well be that the only effective oversight of any alleged cumulative damage to deliberations necessarily arises from a rational review of grand jury presentations by trial court judges drawing logical inferences from the minutes. While this court is not suggesting or finding that such a cumulative effect occurred here, condoning the prosecutor's persistent comments directing the grand jury's actions in this and similar cases risks judicial approval of a degree of prosecutorial control over the grand jury's deliberative process which is antithetical to their time honored independent role.

Alternatives Available To A Prosecutor

Without conceding that anything improper was done in this case, the People during oral argument asked the court what alternatives a prosecutor might have utilized in a case such as this. As the court suggested at that time, the People are not without remedies in such cases. Such alternatives can be employed in a number of situations where the prosecutor is afraid that the Grand Jury may indict in a case which the prosecutor believes is better handled in local court.

Isolated, Non-Judgmental or Directive Comment

Before exploring alternatives to what occurred in this case, it is important to note that this court is not being asked to consider nor is it expressing any opinion on the propriety of an isolated comment by a prosecutor.[FN43] For instance, whether a prosecutor in final submission of a case to grand jurors could say "I will now ask you to deliberate on this case and ask you to carefully consider the law I have read to you and what, if any, evidence there is in the record before you that would provide you with reasonable cause to believe that the legal standard for Driving While Intoxicated as opposed to the lesser standard of Driving While Ability Impaired has or has not been met." Or in another context, whether a prosecutor in giving the case to the Grand Jury might say "If you should find reasonable cause to believe that a physical injury occurred in this case, you should then carefully consider what, if any, evidence there is in this case that would provide you with reasonable cause to believe that the higher threshold for serious physical injury has or has not been met." What the court has found under the particular facts of this case is that however well-intentioned the prosecutor may have been, there was an unacceptable pattern of directive conduct which was pervasive rather than isolated.

CPL § 180.40

Instead of what transpired in this case, when a prosecutor feels the interest of justice would be served by misdemeanor rather than felony prosecution, Criminal Procedure Law Section 180.40 provides a permissible statutory alternative.[FN44] In such cases wherein counsel for the defendant agrees to a misdemeanor plea, it is likely a superior court judge might find such a return to be in the interest of justice. The return for reconsideration to local court does not reduce [*11]the charges , it only allows for the possibility of amendment at the local court level.[FN45] Thus, while useful in a number of cases, this procedure may be of little value in those situations where no plea is contemplated unless the prosecutor and defense counsel know ahead of time that the local court judge would agree to amendment without entry of a plea.

Choosing Which Charges Ask the Grand Jury to Consider

In cases where a CPL 180.40 order might not be suited to accomplishing the People's goal, or those wherein the prosecutor believes that the facts, while marginally justifying a felony indictment, are better suited to local court adjudication, the People have at their disposal another remedy different than the one employed in this case. The People could simply choose not to ask the grand jury to consider the felony charges or withdraw them from their consideration after the evidence has been presented since "it is of course proper for he District Attorney to evaluate a matter for legal sufficiency before commencing, or continuing, a prosecution," [FN46] and a prosecutor enjoys wide latitude in determining how to proceed against an individual. While some argue that the grand jury must vote on all the charges arraigned in local criminal court, neither the statute nor case law support this position.

For instance, the fact that the police have charged certain offenses in a felony complaint, [FN47] does not dictate how the district attorney must proceed. A felony complaint may be brought by "any person having knowledge, whether personal or upon information and belief, of the offense or offenses charged."[FN48] and "serves as a basis for the commencement of a criminal action, but not as a basis for prosecution thereof."[FN49] Also, after an arraignment on a felony complaint, the judge, with the consent of the prosecutor, may evaluate whether there is "reasonable cause to believe that the defendant committed an offense other than a felony," and may reduce the charge accordingly.[FN50] Thus, by definition, the felony complaint does not require that the original charges [*12]be presented to a grand jury.[FN51]

Additionally, a judge cannot dictate to a prosecutor what specific charges must be presented to a grand jury. After receipt of evidence at a preliminary hearing, a local court judge may dismiss all charges, reduce any felony charge to a misdemeanor, or find "reasonable cause to believe that the defendant committed a felony" and "order that the defendant be held for action of a grand jury".[FN52] The judge is not required to specifically find one of the felonies charged in the felony complaint but may order the defendant held if there is reasonable cause to believe any felony was committed.[FN53] However, there are no legal provisions requiring that the "reduced" or "substituted" charge or charges be voted by the grand jury. The grand jury has "the power to investigate and indict regardless of " the actions taken by the local criminal court.[FN54]

This investigative function is recognized by the criminal procedure law which does not require that the prosecutor submit specific charges to the grand jury. Instead, when a defendant "has been held for the action of a grand jury," the "district attorney must submit...evidence concerning a felony allegedly committed by a defendant." [FN55] The distinction is an important one because it balances the constitutionally recognized prosecutorial prerogative to determine on what level prosecution will be sought with the defendant's constitutional right not to be tried on a felony unless that charge has been indicted by a grand jury. If the prosecutor is seeking a felony charge then that law must be read to the grand jury and if the prosecutor wishes only to prosecute as a misdemeanor then only misdemeanor charges need to be read to the grand jury.

Nowhere is this viable prosecutorial prerogative of only asking the grand jurors to consider certain charges illustrated more clearly than in the prosecutor's right of election between Rape in the First Degree and Sexual Misconduct. Under our law, a "no bill" of forcible compulsion Rape precludes return of a prosecutor's information charging forcible compulsion sexual misconduct [FN56] because both offenses have identical elements.[FN57] Since it is axiomatic that a [*13]prosecutor can elect only to present the rape and not sexual misconduct to the grand jury,[FN58] the converse must also be true. Accordingly, the prosecutor could have avoided all of the problems this court perceives in this case by simply reading only those charges which the prosecutor believes were most appropriate to the grand jury: the misdemeanor charges.

The Scope of the People's Authority to Re-Present the Charges to a Grand Jury

Having found that the prosecutor's conduct warrants dismissal of the charges contained in the prosecutor's information, it remains the court's responsibility to indicate the scope of the People's right to re-present this case to another grand jury. While at common law, and under the present Federal system, a prosecutor's authority allows re-presentation without permission,[FN59] in New York that is only allowed in the exercise of a judge's sound discretion upon application by a prosecutor.[FN60] Such re-submission is permitted in only two distinct situations wherein charges are dismissed.

The first is when a Grand Jury dismisses the charges and the second is when a judge dismisses the charges. Once a Grand Jury has been given an "opportunity to evaluate the evidence or charges against an identified defendant"[FN61] and "has indicated its rejection of the People's evidence," [FN62] the case may only be submitted to another grand jury by superior court order and then may only be re-submitted once. That is because

just as the Grand Jury serves to insulate citizens from prosecutorial excesses, the Legislature recognized a need to insulate the Grand Jury process from the excesses which would flow from domination by a prosecutor. The result was section 270 of the former Code of Criminal Procedure, which prohibited the resubmission of dismissed charges without leave of court. It became further necessary to curb the power of the courts, as well, which the Legislature did by [*14]limiting the number of authorized resubmissions to one.[FN63]

A Rochester City Court Judge, however, has no authority to grant such relief in the case of a "no bill" since it is not a superior court.[FN64] There is, however, no such numerical limitation on the number of re-submissions allowed when the grand jury does return charges against a defendant and a judge later dismisses one or more of them based on the grand jury minutes.[FN65]

In cases such as this, the only statutory limitation imposed is that the trial court must exercise sound discretion in issuing the order. The dismissal of the misdemeanor charges in this case cannot be the basis for re-submission of the felony charges to another grand jury as those charges were "no billed" by the Grand Jury.[FN66] Upon application of the People, all this court may do is to "authorize the people to submit the charge or charges to the same or another grand jury."[FN67] However, instead of another Grand Jury presentation the District Attorney may simply choose to file an information.[FN68]

Conclusion

This court certainly does not discount the difficulties faced by a prosecutor who believes that the interest of justice are best served by prosecuting a matter as a misdemeanor even though the underlying facts might make out the elements of a felony. In fact, this case clearly delineates that dilemma. Sensitivity for the prosecutor's predicament, however, does not negate this court's responsibility to ensure the integrity of the grand jury's independent deliberative process.

For centuries, we as a nation have placed our trust in fellow citizens to sit on both grand and petit juries. We have rightfully rejected the cynic's view that "the DA could indict a ham sandwich." To insure that our faith is well placed we must be assured that however "unjust" a view of the evidence a prosecutor fears a grand jury may take, the prosecutor will not feel free to direct its deliberations. Such a dynamic demonstrably diminishes each grand juror's right to participate in an unencumbered impartial review of the evidence. The extent to which each grand juror truly feels empowered to make his or her own decision after deliberation with fellow jurors is a barometer of the climate of the grand jury as the independent voice of the people. The occasional storms created by a grand jury which "over-indicts" a defendant or issues a "no bill" in a case which others might feel should be prosecuted are tempests we as a community are willing to endure in exchange for the assurance that the grand jury is a truly independent body [*15]where each member exercises true free will. Excessive prosecutorial influence, however well intentioned, casts a cloud over the integrity of the grand jury's deliberative process which if allowed to progress unchecked will reap a whirlwind.

Accordingly, under the unique facts of this particular case, and after due deliberation and careful consideration for the reasons set forth above, it is hereby

ORDERED that the defendant is released on her own recognizance pursuant to CPL § 170.50(3). And it is further

ORDERED that all counts in the Prosecutor' Information charging Gwendolyn Eileen Burnett are dismissed [FN69]. And it is further

ORDERED that if the People choose not to simply file a misdemeanor information, they are authorized to submit the charges in the Prosecutor's Information to another Grand Jury.[FN70]

The foregoing constitutes the decision and order of the court.

Enter

Rochester, New York

Hon. Thomas Rainbow Morse

Decision Date: March 31, 2004

Footnotes


Footnote 1:According to Rochester City Court Records, the defendant was arraigned on two counts of Criminal Contempt in the 1st Degree, PL §§ 215.51(a)(b), and Assault in the Second Degree, PL § 120.05(2) on June 14, 2003. Following a Preliminary Hearing, the defendant was held for action of a Grand Jury.

Footnote 2:The Disposition memo filed with the prosecutor's information in this case contains the notation "NOBL" next to each of the felony charges in the column labeled "DISP" which the court takes to mean "No Bill" in a column meaning "Disposition." Although the court has not reviewed the actual vote tally in the Grand Jury Clerk's book, such an interpretation is supported by the discussion between a grand juror and the assistant presenting the case found on the bottom of page twenty of the Grand Jury minutes.

Footnote 3:The case was presented to a Grand July on July 23, 2003. Two days later, based on the affidavit of the foreperson of the Grand Jury, Monroe County Court Judge Richard Keenan directed that a prosecutor's information charging Criminal Contempt in the Second Degree, Menacing in the Second Degree and Assault in the Third Degree be filed in the Rochester City Court. Those charges are the subject of the motion before the court.

Footnote 4:The court received the defendant's written motion on September 22nd and adjourned the case for argument to the 29th.

Footnote 5:The People did not respond in writing to the motion and the Criminal Procedure Law does not require that they do so. Compare CPL § 240.45(1)("motion to dismiss...must be made in writing") with CPL § 240.45(2)("The people may file...an answer").

Footnote 6:While there is authority for the proposition that a defendant must specifically set forth the factual predicate for a defective Grand Jury proceeding, they almost never have access to the minutes to be able to frame such a motion. It's a little like trying to decide if the pitcher picked-off the "ghostie at first base" when two siblings play backyard baseball. The court finds that the request under Section B(22) in the defendant's motion wherein the defendant seeks dismissal on several enumerated grounds and "...any other grounds for defectiveness revealed by the Court's inspection..." was sufficient for the court to enter its oral order. On re-argument, the court provided a copy of page twenty of the minutes to both counsel to assist them in focusing on the court's concerns in this matter. During re-argument counsel for the defendant focused her comments specifically on that page. This court's decision, however, is not just based on that page but on the entire grand jury presentation as reflected in the minutes.

Footnote 7:McKinney's Practice Commentaries to CPL § 190.05 by Peter Preiser. In our state, "[n]o person shall be held to answer for a capital or otherwise infamous crime ... unless on indictment of a grand jury".NYS Constitution, Article I § 6.

Footnote 8:People v. Huston, 88 NY2d 400, 405-06 (1996)(citation and internal quotation marks omitted).

Footnote 9:CPL § 190.25(4)(a).

Footnote 10:People v. Huston, 88 NY2d 400, 405-06 (1996). In this passage the Court of Appeals cited to: CPL art 190; CPL 190.25(6); People v Calbud, Inc., 49 NY2d 389, 394, 396 (1980); People v Pelchat, 62 NY2d 97, 104-05, 108 (1984); People v Lancaster, 69 NY2d 20, 26, (1986), cert denied 480 US 922; People v Di Falco, 44 NY2d 482, 486-87 (1978).

Footnote 11:CPL § 170.50(1)(a). See also PL § 210.30 since the criteria and cases applicable to indictments also apply to review of prosecutor's informations. CPL § 170.50(2).

Footnote 12:People v. Jensen, 86 NY2d 248, 252 (1995). The legislature has mandated that "[t]he grand jury is the exclusive judge of the facts with respect to any matter before it." CPL § 190.25(5).

Footnote 13:See People v. Pelchat, 62 NY2d 97, 105(1984); People v. Jennings, 69 NY2d 103, 114(1986).

Footnote 14:People v. Deegan, 69 NY2d 976, 979 (1987). See also Jennings, supra at 115(In reaching a decision a grand juror's "degree of certitude is 'reasonable cause,' not 'beyond a reasonable doubt' or 'moral certainty' where the principal proof of guilt is circumstantial.").

Footnote 15:CPL § 70.10(1). If the court did not still have the obligation to review the minutes based on the foregoing standards, Criminal Procedure Law Section 170.50(1)(a) would have no purpose whatsoever.

Footnote 16:In fact, even if the court's assessment were to be wrong, the issue is moot and may not form the basis for appeal from a guilty trial verdict based on sufficient trial testimony. CPL § 210.20(6). However, the same cannot be said for appeal of a defective grand jury proceeding, which may raise issues of constitutional dimensions. Huston, supra at 411; see also Pelchat, supra at 105-106.

Footnote 17:People v. Calbud, 49 NY2d 389, 394-95(1980)(comparing CPL § 190.25(6) with CPL §300.10(2) other citations omitted). In fact, while a trial court is obligated to charge all applicable defenses to a trial jury, a prosecutor need not charge with regard to "mitigating" defenses (e.g. mental disease or defect) but must charge only as to defenses which, if believed have the "potential for eliminating a needless or unfounded prosecution"(e.g. justification) . People v. Lancaster 69 N.Y.2d 20, 25-30(1986)(citiations omitted).

Footnote 18:I believe the term "prosecutor" is gender neutral and find its use herein makes reading this decision easier. I consider the generic descriptor "prosecutor" to refer to assistant district attorneys regardless of gender, as I did during my nineteen years as a Monroe County Assistant District Attorney, and ask you to read it that way.

Footnote 19:People v. Batashure, 75 NY2d 306, 311-12(1990).

Footnote 20:People v. Aarons, 305 AD2d 45, 63 (1st Dept., 2003)(dissenting opinion, Ellerin, J. citing People v. Adessa, 89 NY2d 677, 682 (1997) cert granted,—NY2d— (2003). As noted by Blackstone "so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit the King for any capital offence, unless by unanimous voice of twenty four of his equals and neighbors: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards by the whole petit jury, of twelve or more, finding him guilty upon his trial." W. Blackstone, Commentaries on the Laws of England, A Facsimilie of the First Edition of 1765-1769, Vol. IV of Public Wrongs (1769) at page 301[cited in Aarons, supra, at 63.]

Footnote 21:Fisch, New York Evidence, 2nd Edition., § 1133; People v. Brown, 204 AD2d 789 (3rd Dept., 1994); People v. Pelchat, 62, NY2d 97, 106(1984); People v. Howell, 3 NY2d 672, 675 (1958).

Footnote 22:People v. Aarons, 305 AD2d 45, 48(1st Dept., 2003).

Footnote 23:People v. Dominique, 90 NY2d 880, 881(1997).

Footnote 24:People v. Huston, 88 NY2d 400, 409(1996). But see, People v Batashure, 75 NY2d 306 (1990).

Footnote 25:Id.(citations omitted).

Footnote 26:People v. Adessa, 89 NY2d 677, 686 (1997).

Footnote 27:Id. at 682. Compare Huston, supra at 408-09(" a prosecutor who believes a witness is not being forthright may vigorously question or press that witness") with People v. Robinson, 89 NY2d 648, 655-657)("[in the grand jury] the prosecutor's direct examination accomplished the general goal of cross examination, testing the accuracy of the declarant's testimony")

Footnote 28:People v. Adessa, 90 NY2d 677, 682 (1997).

Footnote 29:People v. Montanez, 90 NY 2d 690, 692(1997).

Footnote 30:Id. at 693.

Footnote 31:People v. Sayavong, 83 N.Y.2d 702, 711-12(1994)["Indeed, an actual prejudice test, included in two earlier drafts of that section, was changed in the final draft enacted by the Legislature to read "prejudice to the defendant may result" (see, Preiser, Practice Commentaries,McKinney's Cons Laws of NY, Book 11A, CPL 210.35, at 676)"]

Footnote 32:People v. Pelchat, 62 NY2d 97, 105(1984).

Footnote 33:People v. Di Falco, 44 N.Y.2d 482, 485-89(1978); CPL § 190.30(6); CPL §190.30(7)("Whenever it is provided in article sixty that a court presiding at a jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury."); CPL Article 60.

Footnote 34:For that reasons, a prosecutor's personal belief that the grand jury should not have "no billed" a charge provides an insufficient basis for re-submission of evidence to another grand jury. People v. Dykes, 86 AD2d 191, 194-98(1st Dept., 1982); compare People v. Tomaino, 248 AD2d 944(4th Dept., 1998)(absent new information DA can rely on GJ's no bill as being the final word on a criminal investigation).

Footnote 35:People v. Batashure, 75 N.Y.2d 306, 310 (1990).

Footnote 36:People v. Pelchat, 62 NY2d 97, 108(1984).

Footnote 37:During the colloquy with the grand jurors prior to their vote the prosecutor indicated to the grand jurors that: 1) "Again, it's your decision as the Grand Jury. I'm just telling your as your legal advisor what, in my opinion, are the more appropriate charges. It's you decision." ; 2) "I'll just restate what I said earlier.The original charges are the original charges and I'm asking you to consider those. I'm telling you as your legal advisor what the more appropriate charges are to consider in this case...The decision is up to you as the Grand Jury though when you deliberate"; and 3) "And what I would like to point out to you is that of course it's your decision in the end, but, as your legal advisor, the most appropriate charges are the last three which is criminal contempt in the second degree, menacing in the second degree and assault in the third degree. Those are the more appropriate charges in this matter."

Footnote 38:People v. Batashure, 75 N.Y.2d 306, 310 (1990).

Footnote 39:People v. Batashure, 75 NY2d 306, 311(1990).

Footnote 40:Id.

Footnote 41:People v. Lancaster, 69 NY2d 20, 25(1986).

Footnote 42:The idea that grand jurors possesses a degree of institutional memory is reflected in the fact that reviewing courts generally do not require that the impaneling judge's general instructions regarding burden of proof, quorum, affirmative votes needed for action and the role of grand jurors be read into the record in each separate case.

Footnote 43:While the court provided counsel with an illustrative page of the transcript to focus their legal arguments, this decision today does not rest merely on the comments found on a single page of the transcript. Rather, it is based on analysis of the entire presentation.

Footnote 44:Under that section, "[w]here the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing that the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an order if it is satisfied that the felony complaint is defective or that such action is required in the interest of justice."

Footnote 45: Pursuant to CPL § 180.50(1), "[w]hether or not the defendant waives a hearing upon the felony complaint, the local criminal court may, upon consent of the district attorney, make inquiry for the purpose of determining whether (a) the available facts and evidence relating to the conduct underlying the felony complaint provide a basis for charging the defendant with an offense other than a felony, and (b) if so, whether the charge should, in the manner prescribed in subdivision three, be reduced from one for a felony to one for a non-felony offense. Upon such inquiry, the court may question any person who it believes may possess information relevant to the matter, including the defendant if he wishes to be questioned.

Footnote 46:People v. Batashure, 75 NY2d 306,312(1990).

Footnote 47:See CPL CPL § 140.20(1)("...a police officer...must...file...an appropriate accusatory instrument charging [the defendant] with the offense or offenses in question");§ 140.10(police authorization for arrest without a warrant); CPL § 110.20(duty of the court to transmit a copy of the accusatory instrument filed in local criminal court to the appropriate district attorney); CPL § 1.20(8)(felony complaint).

Footnote 48:CPL § 100.15(1).Although a felony complaint can be based on hearsay, a judge at a preliminary hearing and a grand jury can consider evidence based only on personal knowledge.

Footnote 49:CPL § 100.10(5).

Footnote 50:CPL § 180.50(2).

Footnote 51:To satisfy the Division of Criminal Justice Services, a new database field entitled "Not Presented" (NP), could be substituted for "No Bill"(NOBL) and would account for the disposition of an original charge. See Footone # 2 supra.

Footnote 52:CPL § 180.70.

Footnote 53:Mattioli v. Brown, 71 Misc.2d 99, 100(Supreme Court, Fulton County, 1972).

Footnote 54:People v. Hirschberg, 1 NY2d 258, 261(1956); People v. Lohman, 49 AD2d 75(3rd Dept., 1975).

Footnote 55:CPL § 190.55(2)(a)(emphasis added). Compare CPL § 170.50(3)(judicial authorization for submission of "charges" to a grand jury).

Footnote 56:Compare People v. McEaddy, 30 NY2d 519, 521 (1972)( "The defendant's acquittal of the charge of rape in the first degree, upon the trial court's finding that there was insufficient proof of forcible compulsion precluded a conviction of sexual misconduct by forcible compulsion upon the same evidence.") with People v. Maxwell, 260 AD2d 653, 654 (3rd Dept., 1999)lv denied 93 NY2d 1004("Similarly unavailing is defendant's contention that sexual msconduct is a lesser included offense of rape in the first degree and, therefore, such offense should have been charged to the jury. We have repeatedly held that the prosecution is vested with the discretion to determine under what statute a defendant will be prosecuted. Because sexual misconduct involves forcible compulsion, it is 'not a lesser included offense of rape in the first degree since an acquittal of the rape charge would also, as a matter of law, be an acquittal of the sexual misconduct charge' ")(citations omitted)and People v. Vicaretti, 54 AD2d 236 (4th Dept., 1976)lv denied 41 NY2d 869. Cf. People v. Cummings, 289 AD2d 992 (4th Dept., 2001)(since the defendant was indicted on both Rape 1st and Sexual Misconduct, the court did not address the issue of the effect of a "no bill" on one and not the other). Because of this case law, the better practice for a prosecutor who chooses to submit both charges to the grand jury may be to instruct them to deliberate on the charges in the alternative and if they choose to vote on one, they may not vote on the other.

Footnote 57:Compare Penal Law § 130.55(1), Penal Law §130.20(1) and Penal Law § 130.05(2)(a).

Footnote 58:Compare People v. Vicaretti, 54 AD 2d 236(4th Dept., 1976) lv denied 41 NY2d 869 (The court cited to People v Eboli , 34 NY2d 281,287 in holding that "overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution.)

Footnote 59:People v. Villegas , 77NY2d 849(1991).

Footnote 60:People v. Dykes , 86 A.D.2d 191, 196 (2nd Dept.,1982). People v. Tomaino ,248 AD2d 944(4th Dept.,1998).

Footnote 61:People v. Gelman, 93 NY2d 314, 320 (1999).

Footnote 62: People v. Montanez, 90 NY2d 690, 695(1997).

Footnote 63:People v. Wilkins, 68 N.Y.2d 269, 273(1986)(citations omitted). Moreover, "[t]he dismissal of a charge by the Grand Jurors after a full hearing...must be taken as establishing as a fact that the evidence was not of sufficient credible worth to warrant a prosecution and should not be presented to a petit jury. Such a finding by the Grand Jury is justly entitled to great weight and prosecutors and Judges are not privileged to substitute their judgment for that of the Grand Jury." Id. at 277-78

Footnote 64:See CPL §§ 190.75(3) and 190.05.

Footnote 65:Compare CPL §§ 210.20(4) and 170.50(3) with CPL § 190.75(3).

Footnote 66:See footnote # 2, supra.

Footnote 67:CPL § 170.50(3)(emphasis added).

Footnote 68:CPL § 100.10(1). Those would be the choices presented unless the People are able to "justify resubmission" (Montanez, supra at 693) to another Grand Jury on a motion before the Part 1 County Court Judge pursuant to CPL § 190.75(3). A prospect which seems unlikely given the comments by the ADA before the first Grand Jury which form the basis for this court's dismissal of the prosecutor's information.

Footnote 69: CPL § 170.50(1)(b). People v. Batashure , 75 N.Y.2d 306, 307-13(1990)

Footnote 70:"When the alleged activity constitutes a misdemeanor...[the prosecutor] has complete discretion to determine whether available evidence should be submitted to a Grand Jury or, perhaps, to bypass the Grand Jury and have an accusatory instrument filed." People v. Di Falco, 44 N.Y.2d 482, 486(1978).