This matter comes before the Court by way of Defendant's motion to dismiss and motion for release of the Grand Jury minutes to Defendant. The People have submitted an affirmation in opposition to the motion to dismiss and a subsequent letter (albeit untimely/late)^[FN1] as an overall opposition to the motion to dismiss and motion to release the grand jury minutes to Defendant. Defendant submitted a letter requesting the Court refuse to consider the untimely letter from the People. A detailed statement of the facts and background of this case can be found in this Court's September 23, 2015, Decision and Order and will not be repeated here.^[FN2]

By Decision and Order, dated September 18, 2015, this Court denied Defendant's motion to dismiss the Indictment as part of his Omnibus motion. By Supplemental Decision and Order on the Omnibus motion, dated September 23, 2015,^[FN3] this Court, once again, denied Defendant's motion to dismiss the Indictment for legal insufficiency. Subsequent thereto, co-Defendant Gordon Jenkins entered guilty pleas to three misdemeanors in full satisfaction of the within Indictment. Defendant Gordon did not allocute or implicate Defendant Snowden in his plea. Thereafter, Defendant Snowden filed the within motion to dismiss the Indictment, in the main, basing his arguments in support of dismissal on co-Defendant Jenkins' guilty pleas to only misdemeanors and allocution void of facts or implicating Defendant Snowden of the Bribe Receiving or Conspiracy charges in the Indictment. Defendant Snowden also submitted a motion for release of the Grand Jury minutes to defense counsel, so defense counsel could assist the Court with determining the contemporaneous motion to dismiss.

Other than co-Defendant Jenkins entering guilty pleas to three misdemeanors in satisfaction of the Indictment, nothing has changed, factually or procedurally, between the time of Defendant Snowden's prior motion for dismissal and the within motion for dismissal and release of the grand jury minutes to defense counsel.

Criminal Procedure Law §210.30(3) governs release of Grand Jury minutes. It states, in pertinent part, that after reviewing the minutes, in camera, a court may release said grand jury minutes or portions thereof, to the parties if such release "is necessary to assist the court in making its determination on the motion....Provided, however, such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such indictment."

When considering release of grand jury minutes to defense counsel, a court must engage in a two-pronged analysis: (1) determination of whether there has been a showing of a compelling and particularized need, and (2) the weighing of various factors to assess whether disclosure is appropriate under the circumstances presented. See People v. Robinson, 98 NY2d 755 [2002]. A court will not release grand jury minutes if a defendant cannot meet the threshold burden of demonstrating there is a compelling and particularized need for release of said minutes to defense counsel.

In the instant matter, the Court finds that Defendant has not met the initial threshold burden of showing there is a compelling and particularized need for release of the grand jury minutes in this case to defense counsel. The Court has not indicated in any previous decisions or opinions that it requires the assistance of the parties to determine the sufficiency of the Indictment, and in fact, has determined the Indictment is sufficient by two previous decisions and orders. Contrary to any Defendant's inferences he claims he drew from this Court's September 23, [*2]2015, Decision and Order, this Court has not, and is not, legally struggling with any legal issues in this case. The Court, which has reviewed the Grand Jury minutes in camera, found that said minutes were legally sufficient. This Court's opinion regarding the sufficiency of the Grand Jury minutes remains unchanged, and the Court is not in need of assistance from the parties to determine any issues regarding the legal sufficiency of the Grand Jury minutes. CPL §210.30(3). The Court finds there is no compelling and particularized need for release of the minutes.^[FN4]

On December 14, 2015, in satisfaction of Indictment 156S-2014, co-Defendant Gordon Jenkins pleaded guilty to three misdemeanors: Criminal Mischief in the Fourth Degree, Official Misconduct, and Endangering Public health, Safety or Environment. As part of that negotiated plea bargain agreement, Jenkins would not serve any jail time, nor pay any fines; he was, however, solely liable for the restitution to the Village of Monticello. Defendant Snowden now argues that because the Indictment has, as an element of the alleged crimes, acting in concert, the District Attorney has to prove that Snowden and Jenkins were acting in concert to convict Snowden and cannot do so under the Jenkins plea posture of the case. Defendant argues that because, during Jenkins' plea allocution, the District Attorney did not ask, nor solicit, any facts from Jenkins whether he was acting in concert with Snowden on any of the charges, said plea allocution negates "any rational inference flowing from this matter" that could support the charges against Snowden.

Defendant argues that the language of this Court's September 23, 2015, Decision and Order, coupled with Jenkins' plea allocution, and a September 23, 2015, affidavit by Jenkins, in which he unequivocally states that he and Snowden did not conspire to "commit any criminal activity," negate any inference of wrongdoing by Snowden and therefore the Indictment must be dismissed as a matter of law. He further argues, as he did in his previous motion, that he did not and could not have received a "benefit" from the alleged crimes.

This Court disagrees with Defendant's contentions. Defendant is raising issues of fact for a jury to determine. There are no legal issues that compel this Court to grant Defendant's motion to dismiss as a matter of law. Regarding Jenkins' plea allocution: "[A] dismissal in satisfaction of a plea is not an acquittal which would preclude a prosecutor in the future from inquiring as to the underlying acts of the crime. It is not a dismissal on the merits." People v. Alberti, 77 AD2d 602, 602-603 [2nd Dept. 1980]; see also People v. Torra, 309 Ad2d 1074 [3rd Dept. 2003]. The conspiracy charges referenced by Snowden were not specifically dismissed against Jenkins on the merits; to the contrary, they were dismissed in satisfaction of other convictions, albeit misdemeanors, arising out of the same Indictment. Defendant cannot, as a matter of law, argue that Jenkins was acquitted or found not guilty of the conspiracy counts with which Snowden is also charged. Therefore, whether Snowden and Jenkins acted in concert to commit all or some of [*3]the crimes charged in the Indictment is a question of fact for a jury determination.

In determining the legal sufficiency of an Indictment, a court does not consider speculations by a defendant regarding the People's evidence or proof, or a lack thereof; as the People in the instant matter properly point out, such arguments should be reserved for trial. When seeking the dismissal of an indictment, a defendant must show "that the evidence presented before the Grand Jury, if unexplained and uncontradicted, would not warrant a conviction by a trial jury." People v. Scott, 131 AD2d 893, 894 [2nd Dept. 1987]. Defendant Snowden has not met this burden; he has presented no such evidence to this Court to show that the Grand Jury evidence, if unexplained and uncontradicted, would not warrant a conviction by a jury. Furthermore, it is the Grand Jury's sole discretion to weigh the evidence, including credibility,^[FN5] and it is not for the Court to substitute its own judgment. People v. Cole, 97 AD2d 886 [3rd Dept. 1983]. The Court's function is to determine if there is "competent evidence which, if accepted as true, would establish every element of [the] offense charged and the defendant's commission thereof." CPL §70.10(1); see also People v Jackson, 117 AD2d 822 [2nd Dept. 1986]. As long as a grand jury is able to draw a guilty inference, regardless of competing inferences, a court will not dismiss an indictment. See People v. Deegan, 69 NY2d 979 [1987].^[FN6]

In the instant matter, this Court will not substitute its evaluation of the case for the inferences drawn by the Grand Jury. As indicated in this Court's September 23, 2015, Decision and Order, whether Defendant Snowden received a benefit is a question of fact for a jury to determine. Whether Defendant Snowden acted in concert with co-Defendant Jenkins is also an issue of fact to be determined by a jury, regardless of the language used by Jenkins during his plea allocution. Jenkins was not acquitted of any of the counts in the indictment, nor were any of the charges dismissed on the merits. Therefore, it is up to a jury evaluate the evidence presented by the People and to draw whatever inferences, if any, it finds based on said evidence.

Having considered all of the submissions, arguments made during oral argument, and this Court's previous rulings on t his matter, it is

ORDERED that Defendant's motion to dismiss Sullivan County Indictment No.156S-2014 is denied in its entirety; and it is further

ORDERED that Defendant's motion for release of the Grand Jury minutes for Sullivan County Indictment #156S-2014 is denied in its entirety; and it is further

ORDERED that the parties shall appear on April 29, 2016, for a conference and to schedule a trial date.

This shall constitute the Decision and Order of this Court.