[*1]
People v Thomas
2008 NY Slip Op 52495(U) [21 Misc 3d 1144(A)]
Decided on December 12, 2008
Monroe County Ct
Morse, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 12, 2008
Monroe County Ct


The People of the State of New York

against

Joseph Thomas, Defendant.




2008 - 81

Thomas R. Morse, J.



This decision follows a flurry of papers submitted since the jury's verdict.[FN1] The defendant was convicted of Burglary in the Second Degree, Aggravated Criminal Contempt, Criminal Contempt in the Second Degree and Assault in the Third Degree by a jury which also found him not guilty of Assault in the Second Degree. During the trial, pursuant to their statutory obligation, [*2]the People provided prior grand jury testimony of the victim, Zuri McDuffie, and her mother, Tami Santiago. The defendant's hand written motions focus mainly on that grand jury testimony seeking dismissal of the indictment while his counsel's motion asserts that the jury's verdict should be set aside because it is inconsistent and repugnant and that the court erred in allowing Ms. McDuffie to testify that the defendant paid her to influence her grand jury appearance. For the reasons which follow, the court denies all of the applications brought on behalf of the defendant and will proceed to sentencing him based on the jury's verdict.

Motions to Inspect and Dismiss the Indictment

Both Ms. McDuffie and Ms. Santiago initially testified before the grand jury that they assumed the perpetrator was the defendant but couldn't see him clearly or recognize his voice. Each was then examined regarding prior depositions in which each apparently identified the defendant as the assailant. Ms. Santiago then testified before the same grand jury on a later date and identified the defendant as the person who illegally entered her apartment and assaulted her daughter. She indicated on that second appearance that she testified as she did earlier because she was afraid of the defendant. After inspecting those minutes, Justice Egan issued a written decision in which he found no defect in the grand jury proceeding and that there was sufficient evidence to support every count of the indictment except the fourth count which alleged Endangering the Welfare of a Child. [FN2]

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 [FN3] which acts as "a buffer between the State and its citizens...shields against prosecutorial excesses and protects individuals from unfounded prosecutions." [FN4] A Grand Jury conducts its business in secret,[FN5] not in a public adversarial proceeding wherein counsel for the individual being investigated participates. Sensitive to the dual role of a prosecutor presenting evidence to a grand jury, the Court of Appeals has noted that "the District Attorney determines what evidence to present to that body and what evidence should be excluded." [FN6] Judge Egan previously ruled that the evidence before the grand jury was sufficient as to the counts submitted to the trial jury in this [*3]case and the jury's verdict renders moot any further argument regarding sufficiency of the evidence before the grand jury.[FN7]

Accordingly, appeals following conviction predicated upon the grand jury presentation are limited to cases of constitutional dimension. [FN8] The defendant alleges that the People's legal instructions given to the grand jurors rise to that level. It is beyond question, however, that a prosecutor is not required to instruct the Grand Jury with the same detail that a judge must relate to a trial jury.[FN9] Moreover, in its consideration of evidence, "the proceedings of...a grand jury from inception to final conclusion are presumed to be regular and proper,"[FN10] 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." [FN11] Unless "specific proof" constituting "substantial evidence" is presented, these presumptions of regularity are not overcome.[FN12]

In assessing the conduct of a prosecutor 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.' " [FN13] For those reasons, the Court of Appeals has held that although the statute "does not [*4]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."[FN14] 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 which a Grand Jury presentment is made."[FN15]

In this case, a supreme court justice with decades of experience reviewing grand jury minutes has previously ruled "[t]he Grand Jury proceeding was not defective." Given the precedents cited above, this court sees no reason to disturb that finding. In fact, such a de novo review of the grand jury minutes following the verdict of a properly instructed trial jury would contravene established case law,[FN16] irreparably damaging the orderly decision making process contemplated by the legislature upon which all parties rely and would needlessly delay prompt appellate review of convictions. As noted by the Court of Appeals, "when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned."[FN17] Therefore, this court finds that the defendant's hand written motions for inspection of the grand jury minutes and dismissal are not properly before this court at this time. The provisions of CPL Article 330 are best left to remedy errors which allegedly occurred once jeopardy attached rather than as a vehicle for "second guessing" a pre-trial ruling made by a prior judge in the same case.

The Article 330 Motion to Set Aside the Verdict

Criminal Procedure Law Section 330.30(1) is the basis for defense counsel's motion to set aside the verdict based on alleged errors occurring in the trial of this case. That section permits the court upon motion to

set aside or modify the verdict or any part thereof upon...

1. Any ground in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.

In general, a condition precedent to such a motion is that the issue has been preserved for [*5]purposes of appeal by an objection at the appropriate point during the trial. [FN18] Counsel's motion raises three errors. One was not preserved by such an objection, another was preserved and the third, that the verdicts were "against the weight of the evidence," is not an argument permitted by New York law unless the trial court determines that the evidence "as a matter of law was inadequate to prove guilt beyond a reasonable doubt." [FN19] Viewing the record before this court in a light most favorable to the People, the court is unable to make such a finding .

The defendant's motion to set aside the verdict on the grounds of inconsistency and repugnancy must be denied because the issue is un-preserved. In this case, there was no objection to the charge regarding Burglary, Aggravated Criminal Contempt or Assault in the Third Degree. Accordingly, there is no basis "as a matter of law" to disturb the jury's verdict. Even if there had been a timely objection, the motion would nonetheless fail on the merits because the verdict is not "inherently inconsistent when viewed in light of the elements of each crime as charged to the jury".[FN20]

Importantly, the indictment the jury was asked to consider did not allege that the crime the defendant intended to commit when he entered 455 Post Avenue was assault "with a metal rod." Rather, it charged that he entered the dwelling "with intent to commit a crime therein, to wit, an assault." Accordingly, the court's charge was correct and there is nothing inherently inconsistent between the jury's finding of guilt on the Burglary and Assault Third charges and a not guilty verdict on the charge of Assault Second. Similarly, the Aggravated Criminal Contempt charge did not allege that physical injury was caused to Zuri McDuffie in any particular manner but simply that the defendant "did intentionally or recklessly cause physical injury." Thus, the charge was appropriate and the jury's finding of guilt on the lesser included offense of Assault in the Third Degree, which requires intentionally causing physical injury is not inconsistent with or repugnant to Aggravated Criminal Contempt.[FN21]

Counsel did preserve his objection to the testimony of Zuri McDuffie regarding an alleged payment made to her by the defendant to influence her actions in this case. Although a timely objection was made, counsel's argument must fail because that line of questioning of the [*6]material witness victim who had to be arrested to secure her testimony at trial was made relevant and material by counsel's opening and cross examination. The defendant raised questions regarding the witness's prior inconsistent statements before the grand jury and thus opened the door to re-direct examination regarding the reason for the inconsistency. As observed by the Court of Appeals, "a trial court should decide door-opening' issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression." [FN22] In this case, the court properly advised the jury regarding the testimony and the jury had the ultimate responsibility to determine what, if any, of Zuri McDuffie's testimony it credited and found during its deliberation to be factual. In addition, even if the court erred in admitting the testimony, the error was harmless beyond a reasonable doubt given the testimony of the building superintendent that he observed the defendant fleeing the scene of the burglary, criminal contempt and assault.

Accordingly, after due deliberation and careful consideration for the reasons set forth above, it is hereby

HELD that the defendant's hand written motions are denied in all respects. And it is further

HELD that defense counsel's motions are denied in all respects.

The foregoing constitutes the decision and order of the court.

Enter

Dated:December 12, 2008___________________________________

Rochester, New YorkHon. Thomas Rainbow Morse

Acting Monroe County Court Judge

cc:Grace Carduci, ADA

Mike Dorn, APD

Footnotes


Footnote 1:After his conviction, the defendant brought a hand written motion on his own behalf requesting that the court re-examine the grand jury minutes and dismiss the indictment. The motion sought dismissal pursuant to CPL § 210.30 and § 210.35. The defendant's 9/26/08 motion seeks dismissal of the indictment alleging that it was based on perjured testimony and that the People should have informed the court and opposing counsel of the perjury which it is alleged impaired the integrity of the grand jury(GJ). That motion also alleges that there was insufficient competent admissible evidence before the GJ because the People did not comply with the dictates of CPL § 60.35. The motion alleges that if the evidence was material then the People should have given a curative instruction and if it was not material the prior statement should not have been mentioned before the GJ. Lastly it alleges that the People knowingly permitted perjured testimony to be introduced before the GJ. His counsel then brought a written motion pursuant to CPL 330.30 seeking to set aside the felony convictions alleging that those findings were inconsistent with the People's theory of the case and the other decisions rendered by the jury and repugnant to them. Counsel also argues that the court erred in allowing rebuttal testimony regarding payments allegedly made by the defendant to Zuri McDuffie to influence her testimony before the grand jury. The People opposed both motions asserting that the jury's guilty verdict on assault in the third degree demonstrates that the Burglary and Aggravated Criminal Contempt are neither inconsistent or repugnant and show the jury weighed the evidence and credibility of witnesses in making its decision. Moreover, the People argue that aking the evidence in the light most favorable to the People a rational trier of fact could have returned the verdict they did. The People also allege that the motion on the grand jury minutes is untimely and that they complied with CPL § 60.35(1). Following oral arguments on the motions, the defendant filed another written motion re-asserting and amplifying on his earlier arguments as well as submitting a "boilerplate" motion to dismiss or reduce the indictment based on in camera review of the grand jury minutes. The People's memorandum of November 24, 2008, in response to the earlier proceedings argues that: Judge Egan's February 21, 2008, decision finding the grand jury minutes sufficient is the "law of the case" and binding on this court; the intercepted jail phone call between the defendant and Zuri McDuffie on that same day shows the defendant's awareness of the grand jury proceeding and infers that her knowledge of the witnesses' possible memory losses; and that if the court were to consider the merits of the defendant's hand written papers, any CPL § 60.35 concerns were addressed and cured by Tami Santiago's second appearance before the grand jury.

Footnote 2:The People did not appeal this decision or seek permission to re-present the case to a grand jury.

Footnote 3: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 4:People v. Huston, 88 NY2d 400, 405-06 (1996)(citation and internal quotation marks omitted).

Footnote 5:CPL § 190.25(4)(a).

Footnote 6:Huston, supra at 405-06 (1996). The Court went on to note that "[w]ith this potent authority... comes responsibility, including the prosecutor's duty of fair dealing' ". Id. 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 7:Even if that assessment was wrong, it may not form the basis for appeal from a guilty trial verdict based on sufficient trial testimony. CPL § 210.20(6).

Footnote 8:Huston, supra at 411; Pelchat supra at 105-06.

Footnote 9:Calbud, supra at 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) . Lancaster, supra at 25-30(citations omitted).

Footnote 10:Fisch, New York Evidence, 2nd Edition., § 1133; People v. Brown, 204 AD2d 789 (3rd Dept., 1994); Pelchat, supra 106; People v. Howell, 3 NY2d 672, 675 (1958).

Footnote 11:People v. Aarons, 305 AD2d 45, 48(1st Dept., 2003).

Footnote 12:People v. Dominique, 90 NY2d 880, 881(1997).

Footnote 13:Huston, supra at 409. In Houston, the Court held that

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.

Footnote 14:People v. Adessa, 89 NY2d 677, 686 (1997).

Footnote 15: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 16:People v. Finley, 104 AD2d 450(2nd Dept., 1984)(GJ minutes), adhered to on rearg 107 AD2d 709; cited with approval in People v. Broome , 151 AD2d 995 (4th Dept.,1989)(suppression motion). See also People v. Rodriguez 244 AD2d 364, 365(2nd Dept.,1997)(GJ Minutes); People v. Guin, 243 AD2d 649, 650(2nd Dept., 1997); People v. Johnson 131 AD2d 696, 696( 2nd Dept.,1987); People v. Hartigan, 90 AD2d 506, 506(2nd Dept., 1982) (GJ minutes).

Footnote 17:Martin v. City of Cohoes, 37 NY2d 162, 165(1975).

Footnote 18:As noted by the Court of Appeals, "[a]n objection is required to preserve a point of law for appellate review except in a very small class of cases where the error results in a trial "at basic variance with the mandate of law prescribed by Constitution or statute". People v. Autry, 75 NY2d 836, 839(1990)(citation omitted).

Footnote 19:See People v. Carter, 63 NY2d 530, 536-37(1984). The court noted that "[t]he power granted a Trial Judge is...far more limited than that of an intermediate appellate court [trial judges are not] authorized to set aside a verdict as against the weight of the evidence. Such power existed under the Code of Criminal Procedure which permitted the Trial Judge to grant a new trial when the verdict was "clearly against evidence", but that power was not carried forward into the Criminal Procedure Law." Id.

Footnote 20:People v Tucker, 55 NY2d 1, 4 (1981). See also People v Green, 71 NY2d 1006, 1008 (1988).

Footnote 21:Compare People v. Huck, 1 AD3d 935, 937( 4th Dept., 2003) ("The purpose of the Legislature in enacting the crime of aggravated criminal contempt was to elevate an intentional or reckless assault in the third degree . . . from a class A misdemeanor to a [class D] felony when it is committed in violation of an order of protection against a person for whose protection the order was issued' ")(citations omitted).

Footnote 22:People v. Massie, 2 NY3d 179, 184(2004).