The following papers read on this motion: 2

Notice of Motion................................1

Affirmation in Opposition..................1

The defendant's omnibus motion is hereby determined as follows:

In the instant case the Court has examined the Grand Jury Minutes and finds that the evidence presented fails to establish criminal vis-a-vis tortious standards, (CPL §70.10 [1]), where the culpable mental state involved is criminal negligence. Not all conduct which evinces a lack of care or prudence amounts to criminal conduct. See: People v. McGrantham, 12 NY3rd 892, 2009; People v. Cabrera, 10 NY3rd 370, 2008 and People v. Conway, 6 NY3rd 869, 2006.In its [*2]best light the evidence establishes that the defendant may have been speeding to a slight degree before proceeding through the red light which caused the tragedy. One witness Rudolph Hein, who the Court especially credits because of his background (a retired police officer) and his vehicle's position (right behind the victims' vehicle at the intersection in issue) testified that the defendant was traveling at 40 m.p.h.. The posted speed limit was 40 m.p.h.. He also testified that the defendant was twenty feet away from the intersection when the light turned red for the defendant's lane of travel.

No drugs or alcohol were involved in the instant matter. No other aggravating circumstances existed such as inclement weather, heavy traffic or construction which would make the traveled speed a dangerous speed.

The People did produce a witness, Ronald Baade, who was qualified in the field of accident reconstruction, presumably to testify among other things as to his opinion as to the defendant's speed at impact with the victims' car. For some inexplicable reason he was not asked whether or not he formed an opinion within a reasonable degree of certainty in his field of expertise as to the speed at impact. The word "opinion"was not contained in the questions of the prosecutor nor was the word "opinion" employed by the witness in any answer. In essence there was no competent sworn expert testimony of the witness concerning his opinion as to the defendant's speed at impact. Grand Jury evidence must were appropriate be in accord with CPL §190.30, CPL §60.10 (c) and CPLR 4515. Therefore, in view of the lack of a proper foundation, the Court must discount the testimony of this witness, Ronald Baade, as to the defendant's speed at impact. Also, in view of the paucity of the other evidence indicating criminal negligence on the part of the defendant, the Court cannot consider this prosecutorial inadvertence or neglect to be harmless. Consequently, on the evidence presented the Court finds there was insufficient evidence to establish that there was a gross deviation of the standard that a reasonable person would observe in the situation and counts one, two and three are dismissed. See PL §15.05 (4)

Quite apart from the considerations involving legal insufficiency, all counts involving the culpable mental state of criminal negligence are dismissed for the reason of improper prosecutorial conduct and unfair dealing which usurped the power of the Grand Jury and resulted in prejudice to the defendant. See People v. Huston, 88 NY2nd 400, 1996, People v. Adessa, 89 NY2d 648. 1997.

After the conclusion of the evidence the Grand Jury was charged and during the deliberative process assistant district attorney McCormick, in response to a question of the Grand Jury, was called back into the Grand Jury room and re-read the definition of criminal negligence. The re-reading occurred on or before 11:40 a.m.. Thereafter in the morning session the Grand Jury voted. In that vote the Grand Jury dismissed two counts of criminally negligent homicide and one of criminally negligent assault. A copy of the Grand Jury minute sheet with the names of the witnesses deleted is attached to this decision as Exhibit "A." Although the minutes are silent this Court can only conclude that something happened during the luncheon recess which prompted the People to question the recorded decision of the Grand Jury.

In the afternoon session a colloquy was initiated by the assistant district attorney without any request by the Grand Jury for further legal advice.Grand Jury minutes of May 19, 2011:

Mr. Bushwack: Good afternoon. I'm District Attorney Michael Bushwack. This is the continued [*3]case of the investigation into the deaths of Barbara and Joanna Ryan. The Grand Jury voted previously on this case; is that correct?

The Clerk: Yes.

Mr. Bushwack: The Grand Jury has rendered a decision as far as a no true bill with regard to negligent homicide, two counts; is that correct?

The Clerk: Yes.

Mr. Bushwack: At this time my question to you is, was there an affirmative vote of 12 or more jurors for a no true bill on each of those counts?

The Clerk: Yes.

Mr. Bushwack: Thank you. There was some discussion from the members of the Grand Jury. I'll repose that exact same question to you. Was there an affirmative vote of 12 or more jurors for a no true bill on each of the criminally negligent homicides?

The Clerk: No.

Mr. Bushwack: There was not 12 or more for a no true bill?

The Clerk: That's correct. There was less than 12 jurors who voted for a true bill.

Mr. Bushwack: You have been instructed by this throughout your service, in order for there to be any Grand Jury action of a true bill or a no true there must be a vote of 12 or more Grand Jurors. That's for either a true bill or a no true bill. Let me pose this question a third time. With regard to two counts of criminally negligent homicide, was there an affirmative vote by 12 or more jurors for a no true bill?

The Clerk: No.

Mr. Bushwack: At this time, I will leave to your deliberations with respect to both of those counts.

After the colloquy assistant district attorney Michael Bushwack recharged the Grand Jury on the legal definition of criminal negligence and the voting requirements of the Grand Jury.

This was an experienced Grand Jury. By looking at the history of this case alone, between April 26, 2011 and May 19, 2011, the prosecutors on six sessions presented 15 witnesses to this Grand Jury. Presumably during their tenure they voted true bills as well as dismissed some matters and were aware by means of previous charges of the quorum requirement to take affirmative action. During their deliberations they were aware of their prerogative to ask questions to clarify rules of law. In fact they did so in this case when they sought clarification of the definition of criminal negligence. They did not ask for any clarification of the rule of law requiring twelve jurors to vote any affirmative action.

There might be an appropriate explanation why the prosecutors took the action which they did. However, on the state of this record, this Court can only conclude that it is more likely then not that the prosecutors were dissatisfied with the recorded action of its morning session and thereafter in the afternoon session exercised improper influence which undermined the integrity of the Grand Jury. Consequently, counts one, two and three are dismissed. Since counts four, five and six were voted upon prior to the occurrence of the prosecutorial misconduct those counts are not dismissed.

The remainder of the defendant's motion is hereby denied in its entirety.

So Ordered.

Dated: August 23, 2011_______________________________

George R. Peck, A.J.S.C.