Defendant Laison Evans moves to re-argue this Court's January 24, 2008 Decision and Order (see copy attached) which, upon review of the Grand Jury minutes in the above-captioned case, found that the evidence presented was legally sufficient and that the prosecutor properly instructed the Grand Jury. Defendant now contends that the prosecutor impermissibly questioned him about a juvenile adjudication in violation of the Family Law Act § 381.2 and further compounded the error by the People's comments and responses to an understandably confused panel. The People maintain that defendant opened the door to such questioning, and in any event defendant did not suffer any prejudice from the references to his juvenile adjudication.

In this robbery case defendant, in his statement to the Grand Jury, testified that: "I've never been in trouble, never been in front of a jury, I don't have a criminal record." (T1. pp 9-10). Defendant also stated that he did not take any property from the complainant - "It's not my nature." (T1. p. 11). Defendant repeated that: "I have never been through anything like this before. I don't have any criminal record. I live honestly and I don't take anything from anybody." (T1. p.12).

Immediately following his completed statement the prosecutor's first line of questioning was about a juvenile adjudication:

Q.You said that you never had a serious - - accused of a serious crime like this

before?

A.Yes.

Q.But you were adjudicated as a Grand Larceny in the Court? (T1. p. 13). [*2]

An off-the-record discussion between defense counsel and the prosecutor then took place wherein counsel allegedly objected to any questions concerning defendant's juvenile adjudication.

The questioning then continued:

Q.It's a fact that you were adjudicated as a juvenile for Grand Larceny in the Fourth Degree?

A.Yes.

Q.So on July 18, you pled guilty to Grand Larceny in the Fourth Degree, correct?

A.Correct. (T1. P. 15).

The Grand Jury had no questions for defendant. When charging the Grand Jury that same day, the prosecutor said: "The defendant testified during this presentation and there is evidence before you that shows that the defendant has previously been convicted of a crime." (T2. P. 6). The prosecutor cautioned that "the evidence of the defendant's previous conviction" could only be used to evaluate his "believability" and "credibility" and not as proof that defendant committed the crimes being charged. Immediately after the charge the Foreperson said he/she had a question:

Foreperson: He admitted to being convicted of a former crime. What was the date?

ADA: To clarify, my question to him was not that he was convicted, but that

He was adjudicated and the date of that was July 18, 2003. I asked him when

he pled guilty to that (T2. p.7).

After reading the alibi charge, the assistant district attorney sua sponte stated:

"Just to clarify, members of the Grand Jury, I read to you the prior conviction charge in this case. You did not hear testimony that the defendant was convicted of a crime, but rather he was adjudicated as a juvenile. So, he does not have a criminal record in that regard." (T2. p. 9).

During the course of deliberations the Grand Jury questioned what would happen if they did not have an agreed upon vote by twelve jurors. The prosecutor explained that a vote of twelve was needed for an indictment or dismissal or else it would be "No Action", which would give the People the option of presenting more evidence if they so chose. The following exchange then ensured:

Grand Juror: I know he wasn't convicted, but he pled guilty. What does that mean, somebody can plead guilty to adjudication? What is that?

ADA: As your Legal Advisor, basically he pled guilty, admitted to his guilt, however on his record it doesn't come as a conviction.

Juror: For juvenile cases.

ADA Supervisor: As your Legal Advisor, if you're a juvenile, if you're under a certain [*3]age it's called an adjudication, not a conviction. The evidence was only presented for you to evaluate the credibility as I'm sure (the ADA) read to you. That's the only reason why you should consider that.

Juror: What is Grand Larceny?

ADA Supervisor: That's what he pled guilty on.

Juror: What does that cover and how serious is that?

ADA Supervisor: Grand Larceny is a felony. So I don't know what other information you want to know about that. In this particular case, you didn't hear any other evidence on those facts but it is a felony (T2. P. 13).

Having no further questions the Grand Jury retired to deliberate and returned a True Bill on all counts.

Initially, the Court rejects the People's somewhat disingenuous contention that the instant motion for re-argument, which was filed and served on May 6, 2008, was untimely pursuant to CPLR § 2221(d) since it was not made within thirty days after service of this Court's January 24, 2008 Decision and Order. The Court and the prosecution were timely apprised by defense counsel that this motion was going to be made and this Court granted an extension of time for defense counsel to investigate this unique issue. Indeed the people themselves missed the original court-set deadline to respond and were granted an extension of time to answer.

The Family Court Act § 381.2(1) specifically bars the use of a delinquency adjudication against the juvenile "in any other Court", except that a court imposing sentence after an adult criminal conviction "may receive and consider the records and information on file with the Family Court, unless such records have been sealed pursuant to Section 375.1". Family Court Act § 381.2(2); see also, Green v. Montgomery, 95 NY2d 693 (2001).

Although the People are correct that a defendant is not entitled to a Sandoval hearing before testifying before a Grand Jury (People v. Thomas, 213 AD2d 73 (2d Dept 1995), affd 88 NY2d 821 (1996)) it is beyond cavil that it is "impermissible to use a juvenile offender or juvenile delinquency adjudication as an impeachment weapon because these adjudications are not convictions of a crime.' (Richardson, Evidence § 506, at 494 [Prince 10th ed]; see, Family Ct. Act § 301.2[1]; Penal Law § 30.00. People v. Gray, 84 NY2d 709, 712 [1995].^[FN1] Nevertheless, the cross-examiner may elicit "the illegal or immoral acts underlying such adjudications." Id. Citing People v. Greer, 42 NY2d 170, 176 [1977]; see also People v. Johnson, 218 AD2d 815 (2d Dept 1995), lv denied 87 NY2d 847 (1995), People v. Dudley, 143 AD2d 764 (2d Dept 1988). [*4]

The Court finds that even if defendant arguably opened the door for questioning about his youthful past, the prosecutor was required to limit her impeachment to the underlying facts of defendant's juvenile adjudication and not the adjudication itself, which was improper. See, generally, People v. Murray, 17 AD3d 1042 (4th Dept 2005), lv denied 5 NY3d 792 (2005); People v. Rice, 223 AD2d 405 (1st Dept 1996), lv denied 87 NY2d 1024 (1996); People v. Hunter, 88 AD2d 321 (2d Dept 1982); People v. Sanza, 37 AD2d 632 (2d Dept 1971).^[FN2]

CPL 210.35 provides that a Grand Jury proceeding is defective when "(5) the proceeding otherwise fails to conform to the requirements of Article 190 to such degree that the integrity thereof is impaired and prejudice to the defendant may result." (Emphasis provided). Contrary to the People's position, the Court finds that the error in this case satisfies the "statute's high test" call for the "exceptional remedy" of dismissal of the indictment. People v. Darby, 75 NY2d 449, 455 (1990). The Grand Jury was clearly focused on what a juvenile adjudication constituted in light of the People's frequent usage of the term "conviction" while said adjudication never should have been before them in the first instance. The People's usage of the adjudication and their explanations about it were confusing and contradictory and did not cure the errors, which included giving the charge on the use of prior convictions (as opposed to prior bad acts). The problem was further exacerbated by instructions that Grand Larceny was a felony, which was told to the Grand Jury at a time when the record shows the Grand Jury was considering a "No Action" result.

Accordingly, for the reasons stated herein, defendant's motion for re-argument is GRANTED, and upon re-argument the indictment is DISMISSED pursuant to CPL 210.20(1)(c) and 210.35(5). Leave is granted to the People to re-present this case to a new Grand Jury within forty-five days of the date of this Order, upon proper notice to the defense.

IT IS SO ORDERED,

ENTER,

__________________________

J.S.C.