Defendant requests that the grand jury minutes be given to defense counsel for the purpose of determining whether there was sufficient evidence before the grand jury to support the charges contained in the indictment. Release of the minutes is authorized only when the court finds that disclosure is necessary to assist it in making a determination (CPL Section 210.30[3]). That assistance is not required and defendant's application is denied.

Defendant's motion to inspect the grand jury minutes is granted to the extent that the court has conducted an in camera inspection of the minutes.

Upon inspection, the court concludes that the evidence presented to the grand jury was sufficient to support each of the charges in the indictment. The court is satisfied that the proceedings were procedurally correct: the minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and that, prior to the vote, the grand jurors were instructed that only those grand jurors who had heard all of the evidence presented were permitted to vote and the foreperson noted for the record both the presence of a quorum and that at least twelve of the grand jurors present for the vote had heard all of the evidence presented; each witness testified under oath; the prosecutor complied with the rules of evidence applicable to the grand jury in accordance with CPL Article 190.30; there is no evidence of unauthorized persons in the grand jury or that the integrity of the grand jury was impaired. Moreover, the court concludes that the prosecutor's legal instructions "were adequate and contained no defects rising to the level of impairing the integrity of the proceeding, as would be required for dismissal." People v. Hopkins, 276 AD2d 256, 257 (1st Dept 2000), lv denied, 96 NY2d 784 (2001). Defendant's remaining arguments relating to the grand jury proceedings have been reviewed and found to be without merit. Accordingly, the motion to dismiss the indictment is denied. (CPL §§ 190.65[1]; 210.20[1]; [*2]210.30[1]; People v. Jensen, 86 NY2d 248 [1995]; People v. Calbud Inc., 49 NY2d 389 [1980]).^[FN1]

Defendant's motion for a Huntley/Wade/Dunaway hearing is granted.

The motion for production of exculpatory material in the People's possession is granted in accordance with Brady v. Maryland, 373 US 83 (1963), and People v. Simmons, 36 NY2d 126 (1975).

Defendant requests a bill of particulars and discovery, as well as an order granting the same relief, or, in the alternative, preclusion of evidence. Defendant filed this request simultaneously with his omnibus motion. The statute requires that the People be afforded a reasonable opportunity to respond to defendant's demands before a request for judicial intervention can be entertained (CPL §§ 200.95[2],[4],[5] and 240.80[3]). In any event, the People responded to his request for a bill and demand. Accordingly, defendant's motion to compel discovery is denied.

Defendant's motion to preclude impeachment evidence, People v. Sandoval, 34 NY2d 371 (1974), and evidence-in-chief of defendant's prior bad acts, People v. Ventimiglia, 52 NY2d 350 (1981), is referred to the trial court for hearings immediately prior to trial. The People are ordered to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.

Defendant's application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.

Defendant is charged with Robbery in the First and Third Degrees (PL §§ 160.15[4], 160.05), two counts of Grand Larceny in the Fourth Degree,(PL §§ 155.30[1], [5]), Criminal Possession of Stolen Property in the Fourth Degree (PL § 165.45), Petit Larceny (PL § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2]) and Menacing in the Second Degree (PL § 120.14[1]). The People allege that on September 18, 2011, at approximately 1:00 AM, in the vicinity of East 138th Street and Canal Street, defendant forcibly stole personal property from Jonathan Lopez and, in the course of the commission of the crime or in immediate flight therefrom, displayed what appeared to be a firearm.Defendant was arrested on January 3, 2012 and arraigned on a felony complaint before the Honorable Ruben Franco on January 4, 2012. The court file reflects that the People served grand jury notice and defendant served cross grand jury notice.^[FN3] Defendant, represented by Angel Frau of the Legal Aid Society, testified before the [*3]grand jury on January 10, 2012. As the minutes of the grand jury presentation clearly show, defendant's claim that the grand jury voted this indictment without hearing from him (Pro Se Motion for Release p 2) is false.

Defendant testified that on September 17, 2011, he was present in Debra E.'s home with Debra, Jocelyn and Katherine E., Darshina L., Tricia M. and Crystal S. watching a boxing match (GJ Mins ATC 6). At approximately 2:00 AM on September 18th, Darshina L. and Trisha M. left the apartment. Defendant remained with Crystal S. and did not leave the apartment until that afternoon (id. at 6-7, 10, 11, 18-19). Defendant stated:

I would like to ask the Jury to allow Crystal S. to testify to further prove my innocence. And, if possible, I would like the Grand Jury to subpoena any surveillance that's around the area of the crime, if there is any surveillance around the area of the crime where it happened at to also further prove my innocence

(GJ Mins ATC 7).

In rebuttal, and in stark contrast to defendant's grand jury testimony, the People introduced defendant's post arrest statement made to Police Officer Anthony Russo. Officer Russo testified that, after reading defendant his Miranda warnings, defendant made an oral statement:

Q. What did the defendant say?

A. My question was - - I asked him if he was in the vicinity of Canal Street and 138, which is Sin City, it's a club. And he said he was there about the time of the incident, which is at 1:00 in the morning on September 18th. He said he was there. He said he was by the line to get into the place showing off his money to the woman that was on the line. And he said to me he was trying - - if he was going to blow his money in the club, he might as well try and blow it outside the club.

Q. Was anything else asked to him or shown to him and did he make any other statements? [*4]

A. I showed him that I was in possession of his New York City benefit card. He said to me that he might have lost it, but he didn't leave it inside of anybody's car.

And then my partner, which was present, said we didn't mention anything about a car.

(GJ Mins ATC 26).

Defendant now argues that, "Due to the people not informing the grand jury of defendant's alibi testimony and all available witnesses were not properly examined, defendant was deprived of his rights under CPL 190.50" (Defendant's Pro Se Motion to Reduce or Dismiss p. 4). For the reasons that follow, this claim fails.

ADA Jessica Groppe presented this case to the grand jury. At the conclusion of the presentation of evidence, she asked the foreperson to take a quorum count and read the voting requirements. After the foreperson did so, ADA Groppe made the following record:

Prior to taking a vote, let the record reflect that this Grand Jury has not voted to hear from the requested Crystal S. and did not request any additional evidence for the vote.

(GJ Mins ATC 30). ADA Groppe has submitted an affirmation stating, in relevant part:

On January 10, 2012, the defendant testified in the Grand Jury and requested that the Grand Jury hear from an additional witness as well as to secure surveillance video . . . That on January 10, 2012, the People asked the Grand Jury to vote on whether or not they wanted to hear said evidence or from said witness and that at least twelve Grand Jurors must agree. . . . That the Grand Jury voted that they did not want to hear any additional evidence.

(Groppe Aff p 1).

CPL § 190.50(6) provides:

A defendant or person against whom a criminal charge is being or is about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called pursuant to subdivision three.

CPL § 190.50(3) provides that:

The grand jury may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the grand jury desires to hear any such witness who was not called by the people, it may direct the district attorney to issue and serve a subpoena upon such witness, and the district attorney must comply with such direction. At any time after such a direction, however, or at any time after the service of a subpoena pursuant to such a direction and before the return date thereof, the people may apply to the court which impaneled the grand jury for an order vacating or modifying such direction or subpoena on the ground that such is in the public interest. Upon such application, the court may in its discretion vacate the direction or subpoena, attach reasonable conditions thereto, or make other appropriate qualification thereof.

Here, defendant specifically requested that the Grand Jury call Crystal S. as a witness and [*5]subpoena surveillance video from the area where the crime allegedly took place. The People, as required, informed the grand jury of defendant's request and asked the grand jurors to vote on whether or not they wanted to hear from defendant's alibi witness. See People v. Ali, 19 Misc 3d 672, 674 (Sup Ct, Queens County 2008) ("The People have a duty to communicate to the grand jury the defendant's request, and then to allow the grand jury to use its discretion in deciding whether to hear from the witnesses (emphasis in original)." The grand jurors voted against calling Crystal S. as a witness. This is established both by the record made by ADA Groppe in the grand jury and by her affirmation.^[FN4]

Thus, the sole issue remaining is the People's failure to proffer the witness on the record, so that it could be recorded by the grand jury stenographer in accordance with CPL § 190.25(6), which provides, in relevant part, that "[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes." However, "[f]ailure to record instructions does not automatically mandate dismissal of an indictment" (People v. Percy, 45 AD2d 284, 286 [2d Dept 1974]) [failure to record instructions required dismissal in "highly complex" grand jury presentation where motion court was unable to fix with precision the theory of various counts and potential for prejudice was great], aff'd, 38 NY2d 806 [1975]). Dismissal of an indictment is authorized pursuant to CPL §§ 210.20(1)(c) and 210.35(5) only when the grand jury proceeding is defective to such a degree that the integrity of the proceeding is impaired and prejudice to the defendant may result. See People v. Huston, 88 NY2d 400, 409 (1996) ("Dismissals of indictments under CPL 210.35[5] should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. . . . not every improper comment, elicitation of impermissible hearsay, impermissible question or mere mistake renders an indictment defective"). Notably, in Percy, the Second Department observed:

Many presentations to grand juries in uncomplicated cases amount to but a relatively few pages. In such cases, if the proof is clear and the charge established, there is virtually no likelihood of prejudice if the prosecutor's instructions are not recorded. No purpose would be served in those cases in dismissing the indictment and resubmitting the matter to another grand jury.

People v. Percy, 45 AD2d at 286.

Here, the evidence presented to the grand jury was entirely straightforward and notably thorough. It included eyewitness testimony from the complaining witness, corroboration in the form of defendant's benefit card, which was recovered from the complainant's car, evidence of a line-up identification, as well as defendant's statement putting himself at the scene, suggesting his own consciousness of guilt, and contradicting his own grand jury testimony. This evidence plainly established reasonable cause to believe that on September 18, 2011, at approximately 1:00 AM, in the vicinity of Canal Street and East 138th Street, defendant entered the victim's car, [*6]pointed what appeared to be a firearm at him and forcibly stole his personal property. Moreover, the grand jury was free to exercise its discretion by declining to hear from defendant's girlfriend. Accordingly, there is no possibility that defendant was prejudiced by the prosecutor's failure to proffer Crystal S. on the record, rather than only subsequently recording the grand jury's vote not to hear from the witness.

Finally, the remainder of the prosecutor's legal instructions were properly recorded by the grand jury stenographer. Contrary to defendant's pro se claims, the prosecutor properly charged the grand jury with respect to defendant's prior convictions as follows:

You will recall that the defendant who took the witness stand on his or her behalf has been previously convicted of a crime. I now charge you and I emphasize that under no circumstances are you to consider the fact that the defendant has been previously convicted of a crime as proof that he or she committed any of the crimes with which he is charged in any case.

You may consider the defendant's previous convictions only for the purpose of assisting you in making your evaluation of the defendant's credibility and believability as a witness to aid you in making your determination of what weight you will give to the defendant's testimony.

(GJ Mins ATC 35-36). The prosecutor also properly charged the grand jury with respect to defendant's alibi:

In this case, there was evidence offered by the defendant that the defendant was at some place other than where the crime was allegedly committed at the time charged, and that, therefore, he could not have committed or participated in the commission of the crime. This is what we call in law an alibi.

The defendant is under no obligation to prove an alibi to any degree since he has no burden of proof whatsoever on this issue. On the contrary, the People must establish that despite the alibi there is legally sufficient evidence to believe the crime was committed and that there is reasonable cause to believe the crime was committed by the defendant.

If the People have failed to disprove the evidence as to alibi in and of itself, or, when taken into consideration with all the other evidence in the case, or lack of evidence, you believe the People have failed to establish that there is reasonable cause to believe that it was the defendant who allegedly committed the crime, then you cannot indict.

Even if you do not believe the alibi evidence, in order for you to indict the defendant, the People must still establish that there is reasonable cause to believe that a crime was allegedly committed and that it was committed by the defendant.

(GJ Mins ATC 33-34).

Accordingly, this court concludes that the failure to record the prosecutor's proffer of Crystal S. as a witness to the grand jury did not impair the integrity of the grand jury. Defendant's motion to dismiss the indictment is therefore denied in its entirety. Defendant's remaining claims with respect to the grand jury proceedings have been considered and are similarly denied.

[*7]This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

July 11, 2012

_______________________________

Miriam R. Best

Acting Justice of the Supreme Court