The People and the Defendant move this Court to reargue its decision denying the motion of the People and the Defendant to inspect the Grand Jury minutes regarding this matter and to dismiss the Prosecutor's Information after said review.

On March 30, 2006, the Defendant moved for inspection and dismissal of the Grand Jury minutes regarding this matter. The People joined in Defendant's motion. In support of the motion, both sides relied on Criminal Procedure Law §210.30 and C.P.L. §210.20. This Court denied said motion as improper and inapplicable in that, as per C.P.L. §210.30 and 210.20, a motion to inspect and dismiss would have to be made to "a superior court" after the Defendant is "arraigned on an indictment." Since the District Court is not a "superior court" and because the Defendant had not been arraigned on an indictment, the motion was denied.

The People and the Defendant now argue that this Court should have inspected the Grand Jury minutes and dismissed the matter pursuant to Criminal Procedure Law §170.50. This argument was never raised by either the People or the Defendant in their moving papers. Throughout their re-argument papers, the People aver that this Court reached an erroneous conclusion regarding the motion to inspect and dismiss. To the contrary, the People were erroneous and incorrect in the statutory authority which they relied upon in their moving papers and consequently received a decision accordingly. It is incumbent upon moving parties to cite the relevant and appropriate statutory authority for their motion. It is neither the function nor the obligation of this or any Court to reconstruct motions of either the People or the Defendant to make them proper, appropriate, or sensible.

Furthermore, since the arguments now raised by the People and the Defendant cite different statutory authority, the motion is not a "motion to reargue" but rather, a "motion to renew." This Court will deem the instant motion a motion to renew and will consider the issues raised accordingly.

Criminal Procedure Law §170.50 provides as follows: [*2]

"Motion in superior court to dismiss prosecutor's information.

1. At any time after arraignment in a local criminal court upon a prosecutor's information filed at the direction of a grand jury and before entry of a plea of guilty thereto or commencement of a trial thereof, the local criminal court wherein the prosecutor's information is filed may, upon motion of the defendant, dismiss such prosecutor's information or a count thereof upon the ground that:

(a) The evidence before the grand jury was not legally sufficient to support the charge; or

(b) The grand jury proceeding resulting in the filing of such prosecutor's information was defective."

Notwithstanding the misleading title of C.P.L. §170.50, "Motion in superior court ...," said statute provides this Court, a local criminal court, with the statutory authority to review the Grand Jury minutes and dismiss the Prosecutor's Information resulting therefrom, if appropriate.

A review of the Grand Jury minutes regarding this matter reveals a number of serious and glaring problems and improprieties with the Grand Jury presentation regarding this matter.

HARASSMENT IN THE FIRST DEGREE:

On November 1, 2005, the People presented the above entitled matter to the Grand Jury. The Grand Jury was instructed to consider three (3) charges, namely: Criminal Contempt in the First Degree (regarding an October 12, 2005 alleged incident), Stalking in the Fourth Degree (regarding an October 12, 2005 alleged incident), and Harassment in the First Degree (regarding a May 5, 2005 alleged incident.) The Grand Jury voted a "No True Bill" as to the first two charges.

With respect to the charge of Harassment in the First Degree the People presented the Grand Jury testimony from the Complainant regarding a May 5, 2005 alleged incident wherein the Defendant allegedly stated to the Complainant "You ever talk about my mother, I'll put a bullet in your fuckin head." The Grand Jury also heard unsolicited testimony from the complainant regarding an incident allegedly occurring on May 3, 2005, wherein the Defendant allegedly made a sweeping motion across his neck while stating to the Complainant, "I'm going to slit your fuckin throat." In charging the Grand Jury regarding Harassment in the First Degree, the People explicitly directed the Grand Jury to only consider the testimony regarding the alleged incident on May 5, 2005. Moreover, in response to clarification by a member of the Grand Jury, the People further reminded the Grand Jury of that instruction at the conclusion of their presentment.

A review of the minutes and the decision of the Grand Jury thereto indicates that the Grand Jury disregarded the instructions of the People. Instead of limiting their consideration of Harassment in the First Degree to the May 5, 2005 alleged incident, the Grand Jury considered the May 3, 2005 alleged incident and directed the People to file a Prosecutor's Information for Harassment based on the alleged conduct occurring on both dates. The Grand Jury's "Direction to File Prosecutor's [*3]Information" specifically states that the Harassment charge is based upon the May 3, 2005 alleged incident and the May 5, 2005 alleged incident. The inclusion of the May 3, 2005 alleged incident by the Grand Jury in their consideration of the charge of Harassment in the First Degree was against the instruction by the People and was therefore error by the Grand Jury.

Moreover, if the Grand Jury had followed the instructions of the People to limit their consideration only to the May 5, 2005 alleged incident, and then directed the People to file a Prosecutor's Information based solely on the May 5, 2005 alleged incident, said direction would also have been in error as set forth below.

Penal Law §240.25, Harassment in the first degree, provides in relevant part as follows:

"A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury (Emphasis Added)."

One alleged act, however threatening or menacing, is insufficient to satisfy the statutory requirement that there be either a "course of conduct" or that a defendant "repeatedly" commit acts against a complainant. Therefore, the alleged incident on May 5, 2005, by itself is insufficient to support the charge of Harassment in the First Degree. Hence, there was no basis for the People to have presented to the Grand Jury a charge of Harassment in the First Degree based solely on the alleged incident on May 5, 2005.^[FN1]

Other glaring errors in the Grand Jury presentment include the Complainant testifying about allegations of previous physical abuse by the Defendant, and testimony regarding prior Orders of Protection. Although said testimony was volunteered by the Complainant and was nonresponsive to the Prosecutor's questions, said testimony was not stricken from the record and the Grand Jury was not instructed to disregard same.

DEFENDANT'S TESTIMONY:

The Defendant testified before the Grand Jury on November 1, 2005. Although the Grand Jury had already heard testimony from the complainant regarding alleged incidents occurring on May 3, 2005 (regarding the Harassment charge), May 5, 2005 (regarding the Harassment charge), and October 12, 2005 (regarding the Criminal Contempt and Stalking charges), the People restricted the statement and testimony of the Defendant to the alleged incidents on May 5, 2005, and October [*4]12, 2005. In light of the fact that the Grand Jury heard testimony from the complainant about an alleged incident on May 3, 2005, and the People did not instruct the Grand Jury to disregard such testimony, the Defendant should also have been permitted to give testimony regarding the May 3, 2005 alleged incident. In allowing the Grand Jury to hear and evaluate evidence regarding an incident which the People prohibited the Defendant from testifying about, the People effectively denied the Defendant his opportunity to appear, to testify, and to be heard, before the Grand Jury.

Based on the forgoing, this Court concludes that the Grand Jury did not properly follow the instructions of the People regarding the charge of Harassment in the First Degree in that the Grand Jury violated the People's instruction and improperly considered testimony of the alleged May 3, 2005 incident even though they were specifically directed to solely consider only the alleged May 5, 2005 incident. Furthermore, the evidence before the Grand Jury regarding the May 5, 2005 alleged incident was not legally sufficient to establish the offense of Harassment in the First Degree. Finally, this Court holds that the restriction of the Defendant's testimony before the Grand Jury by the People renders the Grand Jury proceeding defective and invalid.

The Prosecutor's Information is hereby dismissed pursuant to Criminal Procedure Law Section §170.50. The People are authorized to resubmit the charge to the Grand Jury.

Dated:May 12, 2006

ENTER:

____________________________________

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

Law Offices of Stephen Kunken