The issue before the Court involves whether it can consider defendant's motion, made pursuant to CPLR 2221(e), to "renew" his application, made to another judge, since retired, to dismiss four counts of an indictment, based on information disclosed to the defendant after the prior decision was rendered. The information includes evidence that would be considered exculpatory under Brady v. Maryland, 373 US 83 (1963) and its progeny in connection with those counts, as such evidence negates the essential element of those charges that defendant actually possessed the dangerous instrument he verbally threatened to use against the complaining witness. The defendant requests this renewed review so the Court can determine whether such evidence was presented to the grand jury and, if not, whether the evidence before the grand jury was therefore legally sufficient to support those charges, as well as whether the grand jury was sufficiently instructed in this case as to all essential elements of those counts. The Court grants the application to renew and, upon its review of the grand jury minutes, dismisses those counts of the indictment.

Defendant is charged in a nineteen-count indictment with extremely serious felonies, including two counts of Predatory Sexual Assault, (Penal Law §§ 130.95 (1)(b) and (2)), a Class A-II felony (Counts One and Two), Robbery in the First Degree, (Penal Law § 160.15(3)), a Class B violent felony offense (Count Three), and Attempted Robbery in the First Degree (PL §110/160.15(3)) (Count Seven). The current motion seeks dismissal of only those counts. As the People concede, an essential element of each of those charges is that the defendant used or threaten to use a dangerous instrument which he actually possessed during the commission of the crimes, or in immediate flight therefrom. People v. Grant, 17 NY3d 613 (2011); see also People v. Peralta, 3 AD3d 353, 355 (1st Dept 2004). In this case, the indictment specifically pleads the dangerous instrument used or threatened to be used was in fact a knife.

In his omnibus motion dated April 19, 2013, defendant moved, inter alia, for the Court to inspect the minutes of the evidence presented to the grand jury, and either dismiss all charges contained in the indictment or reduce them. The motion asked the Court in general terms to consider the legal sufficiency of the evidence presented to the grand jury, the sufficiency of the instructions read by the prosecutor to the grand jury, and whether the "conduct of the Assistant District Attorney was proper within the grand jury." On May 30, 2013, in a written decision, a justice of this Court denied the motion, finding the "evidence adduced before the Grand Jury was [*2]legally sufficient and the procedures employed were proper." That judge has since retired.

About five weeks after that ruling, on or about July 3, 2013, the People provided defendant with 230 pages of documents as part of the Bronx District Attorney's Office's voluntary pre-trial discovery policy. Several of those documents were found to contain information disclosing that the complaining witness never saw defendant in possession of a knife during, or in flight from, the crimes, although she said she did believe he possessed one during the encounter. Since this information was not available to defendant prior to his making the initial motion to dismiss, defendant moved, pursuant to CPL § 2221(e) to "renew" his prior application for the Court to inspect the grand jury minutes,^[FN1] and to dismiss only the four counts containing the element that defendant possessed the knife purported to have been used or threatened to be used at the time the criminal acts alleged were occurring.

The People strongly opposed the application that this Court consider making a ruling on the motion to renew on its merits. They argued, in substance, that the prior judge was aware of the law requiring that the defendant had to have "actually possessed" the knife or dangerous instrument in connection with his commission of the crimes when reviewing the grand jury minutes and denying the motion to dismiss, and for this reason alone the motion to renew made to a different judge was improper. They also argued that the factual basis for the motion to renew was based upon mere "speculation about what [had been] said in the grand jury," and therefore the application did not satisfy the legal requirement that there be "new facts" presented to the Court in connection with a motion to renew. (Affirmation in Opposition to Motion, dated February 18, 2014 at pages 2 - 3).

At the outset, the information received by the defense in discovery provides ample, if not compelling, reason for this Court to consider the merits of this application.

After all, it is undisputed that the material contains evidence which negates an element of the most serious offenses charged in the indictment, including the only two Class A-II felonies. Although this Court acknowledges that an extremely experienced jurist found no reason to question the sufficiency of the evidence or any other aspect of the grand jury proceeding, that decision has been rendered suspect by the People's odd response to this motion to renew. First, the People never even attempted to argue that any evidence supporting the conclusion reached by the grand jury finding defendant actually possessed a knife was ever presented to the grand jury. Thus, in its own decision dated February 24, 2014, this Court granted the procedural part of the application requesting renewal of the application to dismiss those specific counts, and directed the People to turn over the grand jury minutes for its inspection. Second, left completely unaddressed by the People in their opposing affirmation was the allegation raised by defendant about whether the prosecutor failed to present the very evidence now in defendant's possession which would have negated an essential element of these four crimes. Therefore, as a matter of law, as well as in the interest of justice, this Court had little choice but to grant the motion to renew. See Mejia v. Nanni, 307 AD2d 870 (1st Dept 2003).

The evidence before the grand jury demonstrates defendant's legal arguments for dismissal are correct on many grounds. First, the evidence before the grand jury is completely [*3]insufficient to support any charge which requires proof in some manner that defendant actually possessed any kind of dangerous instrument, let alone a knife. This is because where such crimes are voted by a grand jury, there must be evidence of the "actual employment' of a dangerous instrument." Grant, 17 NY3d at 619 (emphasis in original). Here, the complaining witness testified that defendant asked her several times during their encounter, when she appeared to be resisting his forcible actions and demands, whether she "wanted to get stabbed." However, the complaining witness never testified she ever saw a knife in defendant's possession during their lengthy encounter, or anything object that could be considered a dangerous instrument. Nonetheless, the prosecutor suggested to the grand jury, through a series of leading questions to this witness, that defendant possessed a knife, by asking at several points during her testimony whether she "believed" defendant possessed a "knife" during their encounter. She consistently answered that she held such belief. Yet only once did she explain that she held that belief based on defendant's repeated verbal threats to stab her. What the People characterize as "mere speculation" turns out to be a fact — the witness never once on her own said she ever saw a knife in defendant's actual or even constructive possession, or that he "employed" one, and the prosecutor never once asked her if she ever saw defendant in possession of a knife or any other type of dangerous instrument. Moreover, none of the other evidence presented to the grand jury, including testimony containing the substance of statements made by the defendant to the police, would support a finding that he possessed a knife during the many violent acts he is charged with committing.

Based on this record, the grand jury should never have been asked to consider voting the four charges which are the specific subject of this Court's review on this motion to renew. Indeed, the People concede that "the legal principle" behind defendant's "premise that Predatory Sexual Assault and Robbery in the First Degree require actual possession of a dangerous instrument by the defendant . . . has been well-settled in New York for more than thirty years. People v. Grant, 17 NY3d 613 (2011); People v. Ford, 11 NY3d 875 (2008); People v. Pena, 50 NY2d 400 (1980)."(Affirmation of Assistant District Attorney in Opposition to the Motion dated February 18, 2014, at page 3). That "legal principle" should have guided the prosecutor who presented this case to the grand jury in February 2013, and acted as the "legal advisor" to that arm of the Supreme Court. To now argue otherwise would be tantamount to asking this Court to resuscitate charges that should never have been brought to life by the grand jury in the first place.

This Court believes the prior judge knew this same law very well when reviewing the grand jury minutes. That judge reviewed minutes containing the leading questions posed to the witness, and her answers that she "believed" the defendant had a "knife." That review was done without the defense raising the specific arguments he now asks this Court to consider in the motion to "renew" following disclosure of the previously unknown, exculpatory evidence. Thus, it is possible that judge may have concluded the testimony that the witness believed defendant possessed a knife was based on what the witness objectively observed, and not only what she subjectively believed. This Court, on motion to renew following disclosure of that evidence, views the grand jury evidence through judicial eyes focused on a targeted, fact-based legal argument based on evidence not previously known to the defendant or the retired judge; it is also an argument that has never been disputed on the merits by the People. The Court understands that its role is not to review the validity of the prior decision, but to decide a "renewed" application for the same relief in light of what has now been argued based on new evidence. [*4]Given this procedural posture, this Court finds pursuant to the motion to renew that the evidence presented to the grand jury is legally insufficient to demonstrate the witness actually saw a knife during the time she testified she was sexually assaulted by the defendant as well as when he forced her to relinquish her personal property. While it shows she understandably and subjectively believed he may have had a knife based solely on his repeated verbal threats to "stab her," this evidence alone is insufficient to establish defendant actually possessed a knife. Grant, 17 NY3d at 614- 17.

The defendant further asks the Court to re-examine the legal instructions presented to the grand jury in connection with these charges to determine whether this would provide an alternative ground for dismissal. Here, the prosecutor never instructed the grand jury they had to find the defendant actually possessed a knife in considering whether to vote these charges. Of course, that instruction must be given by a judge charging a petit jury in a trial based on an indictment containing these specific charges. See Grant, 17 NY3d at 618-19; People v. Ford, 11 NY3d 875, 878 (2008). Although a grand jury need not be instructed with the same precision as a trial jury, see People v. Goetz, 68 NY2d 96, 115 (1986), in this case, given the fact that the witness never testified she saw a knife or anything resembling one, and there was no other evidence presented about which the jury could infer that he actually possessed one. it was further error for the prosecutor not to have given the more detailed instruction about this concededly long-settled "legal principle" to this grand jury.

In short, as in Grant, evidence of defendant's threatening words alone were not sufficient for this grand jury to find he actually possessed a knife or any other dangerous instrument in the course of his commission of the many forcible crimes alleged in the indictment. Moreover, the grand jury was not adequately instructed in this case that they were required to make a finding that there was reasonable cause to believe he actually possessed a knife. Accordingly, upon this properly renewed application, the Court dismisses Counts One, Two, Three and Seven of the Indictment.

Finally, based on its review of the specific allegations raised in the motion to renew, and the detailed findings set out herein, the Court denies defendant's renewed application to order disclosure of the minutes of the grand jury proceeding. CPL §210.30(3).

This constitutes the Decision and Order of the Court.Dated: April 3, 2014_______________________________

Hon. Ralph Fabrizio