County Court, Yates County, November 9, 2017

Katie Martin-Henderson, Public Defender (Keith R. Lord of counsel), for defendant.

Valerie G. Gardner, District Attorney, for plaintiff.

Defendant has been indicted for a single felony, tampering with physical evidence (Penal Law § 215.40 [2]), a class E felony; and several misdemeanors: conspiracy in the fifth degree (Penal Law § 105.05 [1]), and four counts of promoting prison contraband in the second degree (Penal Law § 205.20 [1]), all class A misdemeanors.

By omnibus motion filed June 20, 2017, defendant moved for assorted forms of relief. The omnibus motion was argued on September 19, 2017, and the court ruled on the omnibus motion, including granting in camera review of the grand jury minutes. After making its initial review the court by letter dated October 13, 2017, to District Attorney Gardner and attorney Lord, informed the parties of certain possible irregularities in the proceeding, including that there may have been the unauthorized presence of one witness during the testimony of two other witnesses; that an officer testified as to his opinion as to whether there was probable cause and whether a lighter is prison contraband; and that it appears that another officer provided incompetent foundation evidence regarding exhibit 8, incompetent testimony concerning the jail surveillance [*2]video of the defendant's cell area without the video being submitted into evidence, and improper speculation testimony about how the lighter had been brought into the jail. The matter was scheduled for an October 17, 2017 appearance on the record for the attorneys to respond to the identified issues and to submit any further arguments, or applications, or submit case law to the court.{**58 Misc 3d at 979}

At the completion of the October 17, 2017 appearance, the court gave the defendant time to make written submissions regarding the grand jury proceedings and gave the People additional time to provide written response to defendant's submissions, if any. (See People v Santmyer, 255 AD2d 871 [4th Dept 1998]; People v Davis, 87 AD3d 1332 [4th Dept 2011].)

The court having listened to the oral presentations of counsel and reviewed the submissions, and having completed its review of the grand jury minutes, decides as follows:

As a preliminary matter, the court determines upon its in camera inspection of the grand jury minutes that release of the minutes to the defendant is not necessary to assist the court in determining the motions to dismiss. The defendant's application for said release is therefore denied.

The defendant moves to dismiss or reduce the counts in the indictment, asserting that the evidence before the grand jury was legally insufficient. (CPL 210.20 [1] [b]; [1-a]; 210.30.) A grand jury indictment is authorized when evidence before it is legally sufficient to establish that such person committed an offense and competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense. (CPL 190.65 [1].) The standard of review upon a motion to dismiss for legal insufficiency is whether the evidence before the grand jury if unexplained and uncontradicted would warrant a conviction by a trial jury. (People v Pelchat, 62 NY2d 97 [1984]; People v Reyes, 75 NY2d 590 [1990].)

"Legally sufficient evidence" means competent evidence which if accepted as true, would establish every element of the offense charged and the defendant's commission thereof, except when corroboration required by law is absent. (CPL 70.10 [1].) Under CPL 70.10 (2) "[r]easonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

Count VI charges the defendant with promoting prison contraband in the second degree, based on the allegation the defendant while an inmate at the jail, had blue underwear instead of the jail issued white underwear. The court finds that there was insufficient competent, nonhearsay proof to support every element of the crime. District Attorney Gardner asked{**58 Misc 3d at 980} Sergeant Antonia Gridley, Correction Sergeant at the Yates County Jail, to testify about what another correction officer, Correction Officer Anthony Nesbitt, had found during the strip search of the defendant in the jail. One of those items allegedly had been blue underwear. However, Sergeant Gridley was not present during the search of the defendant, and Correction Officer Nesbitt, who conducted the search of the defendant, did not testify in grand jury. Sergeant Gridley testified that Officer Nesbitt found the blue underwear, and her only basis of knowledge as to what the search found is what she was told by Officer Nesbitt. The prosecutor relied on [*3]inadmissible hearsay testimony to prove essential elements of the crime. Without the inadmissible hearsay testimony there was legally insufficient evidence to support count VI, promoting prison contraband in the second degree, relating to the blue underwear allegedly possessed by the defendant. Therefore, this count is dismissed for lack of legally sufficient proof.

The defendant also moves to dismiss the indictment on the ground that the grand jury proceeding was defective. (CPL 210.20 [1] [c]; 210.35.) An indictment regular on its face must be presumed to have been properly returned by the grand jury. (People v Nunez-Mezon, 168 AD2d 991 [4th Dept 1990].)

"Dismissal 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. 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 . . .

"Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment (see, People v Avant, 33 NY2d 265, 271)." (People v Huston, 88 NY2d 400, 409 [1996].)

In this matter, District Attorney Gardner presented certain incompetent proof to the grand jury. Specifically, the prosecutor improperly asked Yates County Sheriff's Office Lieutenant Scott Backer, a fact witness, for conclusions of law, by asking him if he believed there was probable cause that contraband had been brought into the jail and whether the inmate and correction officer conspired to get rid of that property and whether{**58 Misc 3d at 981} they did get rid of the property. Although the District Attorney is the legal advisor to the grand jury, here Lieutenant Backer was also asked by the prosecutor to give his legal opinion as to whether a lighter is prison contraband. Although he was a factual witness, the prosecutor asked Lieutenant Backer to offer his opinion on legal issues that the grand jury ultimately had to decide. This was improper and prejudicial, as an officer's opinions of the law or legal issues are not relevant.

Additionally, while the grand jury viewed a jail video (exhibit 5), Lieutenant Backer was impermissibly allowed to provide commentary as to what the video showed, invading the grand jury's role of analyzing the proof presented to it. (See People v Peralta, 22 Misc 3d 1130[A], 2009 NY Slip Op 50375[U] [Sup Ct, Queens County 2009]; People v Post, 49 Misc 3d 1209[A], 2015 NY Slip Op 51528[U] [Sup Ct, Greene County 2015], citing People v Batashure, 75 NY2d 306, 310 [1990].)

Under questioning by the prosecutor, Sergeant Gridley also provided improper hearsay testimony as foundation proof regarding the underwear, part of the evidence submitted as exhibit 8. The prosecutor also asked Gridley improper questions that elicited Gridley's inadmissible hearsay testimony describing what she had seen in her review of jail surveillance video of the defendant in the booking area of the jail, which she placed on a thumb drive (exhibit 6). While the thumb drive was submitted into evidence, the transcript does not show that the video was played for the grand jury. As in People v Peralta (2009 NY Slip Op 50375[U]), where the witness was allowed to give inadmissible hearsay testimony regarding the contents of the video of the defendant during the events that formed the basis of the indictment, but without the grand jurors being able to view the video themselves:

"The Grand Jury was denied an opportunity to view the video, to evaluate it, or to decide for itself what it showed, and what if anything it proved . . . [T]he Grand Jurors only heard Officer Powell's opinion as to what he saw on this alleged video and what he thought it demonstrated which, besides being hearsay, is completely and totally irrelevant. In effect, the officer was made the fact finder and co-opted the job of the Grand Jury." (People v Peralta, 22 Misc 3d 1130[A], 2009 NY Slip Op 50375[U], *4 [Sup Ct, Queens County 2009].)

Additionally, after questions put to the prosecutor by grand jurors about how the defendant was able to get the lighter and{**58 Misc 3d at 982} other materials into the jail, Sergeant Gridley was recalled as a witness. The prosecutor asked improper questions that led the witness to speculate about how the lighter, shorts and underwear had been brought into the jail. This inadmissible hearsay testimony was bolstered by the improper admission of exhibit 11, a report Sergeant Gridley prepared while she reviewed camera footage. The report did not qualify as a business record under CPLR 4518 because it was not properly shown that it was the regular course of business for Sergeant Gridley to prepare the report.

Further, after Lieutenant Backer first testified before the grand jury regarding alleged illegal activity at the Yates County Jail involving the defendant, Sergeant Gridley testified concerning grand jury exhibit 8, a bag containing items of evidence. As Sergeant Gridley began to testify concerning exhibit 8, the prosecutor recalled Lieutenant Backer into the room (stating that the evidence was signed out to him) while Sergeant Gridley was still on the witness stand. (Grand jury tr at 33.) The prosecutor asked Lieutenant Backer to open the bag and show the grand jury the contents of the bag. Lieutenant Backer showed the contents to the grand jurors simultaneously, as Sergeant Gridley testified and described what was in exhibit 8. Sergeant Gridley then continued to testify about other matters, during which time there was no indication in the record that Lieutenant Backer left the grand jury room.

Additionally, Lieutenant Backer continued to be present with the bag of evidence during all of the testimony of the next witness, Correction Officer Palmer, who testified about finding the mesh shorts, tobacco and a broken cigarette in defendant's cell. (Grand jury tr at 44.) Following Officer Palmer's testimony, Officer Palmer exited the grand jury room at the direction of the prosecutor. Contrary to the People's argument, the record establishes that Lieutenant Backer was clearly present during the testimony of two witnesses, not one.

The prosecutor then recalled Lieutenant Backer and he testified again regarding exhibit 8 and its contents, by confirming that the items that he had taken out of the bag were being returned to the bag and the bag resealed.

Criminal Procedure Law § 190.25 (3) as applicable here provides:

"[D]uring the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the{**58 Misc 3d at 983} following persons, in addition to witnesses, may, as the occasion requires, also be present:

"(a) The district attorney;

"(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;

"(c) A stenographer authorized to record the proceedings of the grand jury."

Here, Lieutenant Backer's presence in the grand jury as a fact witness, during the testimony of two other fact witnesses, was not authorized by any of the exceptions listed in CPL 190.25.

Criminal Procedure Law § 210.35 (5) provides:

"A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when: . . .

"5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result."

Having concluded that Lieutenant Backer's presence was unauthorized, the court must then determine whether such unauthorized presence may have impaired the integrity of the grand jury proceedings to the extent that prejudice to the defendant may result.

"In determining whether a possibility of prejudice may result from a person's unauthorized Grand Jury presence, the courts must consider all of the circumstances, including whether that person had an opportunity to interact with the witness, an inclination to influence the other's testimony (cf., People v Wilson, 77 AD2d 713, supra), or some manifest stake or interest in the outcome of the proceeding (see, People v Gilbert, 149 Misc 2d 411, 413 [distinguishing cases where unauthorized persons have nonprosecutorial status from cases involving unauthorized prosecutors]). Additionally, where the unauthorized attendee is a fact witness who hears the testimony of another concerning the substance of the charges against the accused, the possibility of prejudice to the defendant is demonstrated (cf., People v Conte, 17 Misc 2d 664, 666, supra [no evidence that one Grand Jury witness 'was present at any time that (the other witness){**58 Misc 3d at 984} was sworn or began testifying']). Significantly, although Minet was decided at a time when the statutory scheme required automatic dismissal of an indictment for unauthorized presence—without any showing of prejudice (see, former Code Crim Pro § 313 [2])—this Court recognized that the possibility of prejudice was inherent in the simultaneous presence of two fact witnesses (296 NY, at 322, supra)." (People v Sayavong, 83 NY2d 702, 709-710 [1994].)

Here, after his own testimony was complete, the prosecutor brought Lieutenant Backer back into the grand jury room during the testimony of two other officers. Thereafter, the prosecutor called Lieutenant Backer to testify again after he had assisted the prosecutor in the presentation of the two other officers' grand jury testimony, although this testimony was only about putting the items back in the bag marked exhibit 8, and sealing it. The violation of the secrecy rule herein created the possibility of prejudice to the defendant because Lieutenant Backer, a grand jury witness of superior rank in the same department as the two other officer witnesses, was present and assisted the prosecutor. He therefore observed most of the testimony of the two other witnesses, and was then recalled again to testify.

As the Court of Appeals has held in Sayavong in 1994, "It is by now axiomatic that two witnesses are not authorized to be simultaneously present before the Grand Jury." (83 NY2d at 707.) The [*6]prosecutor was in error by allowing Lieutenant Backer to be present during said testimony and that presence created a risk of prejudice to the defendant. The possibility of prejudice that existed here is significant. As the Court recognized in Sayavong, the circumstances include whether that person had an opportunity to interact with the witness, an inclination to influence the other's testimony, or some manifest stake or interest in the outcome of the proceeding. Here, the prosecutor brought the lead investigator into the grand jury, who was a superior ranking officer in the same department, during the testimony of other officers from the Sheriff's Department. Naturally, as the lead investigator Lieutenant Backer certainly had a stake or interest in the outcome of the case, and his mere presence as a supervisor may have influenced the other officers' testimony or he may{**58 Misc 3d at 985} have interacted with those witnesses. The prosecutor either disregarded or did not consider these issues. Collectively, the risk of prejudice was significant and the prosecutor's actions impaired the integrity of the proceedings.

Finally, if the inadmissible evidence as outlined above, including that evidence submitted during the presence of Lieutenant Backer during the testimony of Sergeant Gridley and Officer Palmer, is extracted from the remaining proof, is there sufficient admissible evidence to support each count of the indictment? (See People v Huston, 88 NY2d 400, 409 [1996].)

The grand jury was presented with the hearsay statements of the defendant and Officer Hampsey. While these statements may have been properly corroborated, and would have sufficiently supported counts I, II and III, the statements were introduced during the tainted testimony of Lieutenant Backer and Sergeant Gridley and therefore the court concludes the statements are inadmissible. The court concludes that counts I, II and III are not supported by sufficient admissible evidence. The remaining counts IV, V and VI are also not supported by sufficient admissible evidence.

In conclusion, the cumulative effect of the prosecutor's errors during the grand jury presentation, including improper submission of opinion testimony of two police officers, improper use of hearsay evidence and the violation of the secrecy rule, caused the grand jury proceeding to be so fundamentally flawed that it failed to conform to the requirement of CPL article 190 to such a degree that the integrity thereof was impaired and created the possibility of prejudice to the defendant. (CPL 210.35 [5]; see also People v Winant, 179 Misc 2d 357, 364-365 [1998] [which stated: "Even if it could be argued that there was sufficient other reliable and competent evidence presented, given the cumulative effect of the errors and the fact that the Grand Jury may have founded the indictment upon improper hearsay testimony, dismissal of the indictment is required (People v Pelchat, 62 NY2d 97, 106, supra; United States v Estepa, 471 F2d 1132)"].)

Therefore, on all the above grounds the indictment is dismissed with leave to the People to re-present within 45 days of the date of this decision and order, if they are so inclined.{**58 Misc 3d at 986}

The defendant's motion for release of the grand jury minutes is denied. The defendant's motion to dismiss count VI of the indictment due to insufficient proof is granted. The defendant's motion to dismiss the indictment due to the failure of the proceedings to conform to the requirements of article 190 to such a degree that the integrity of the proceedings was impaired and prejudice to the defendant may have resulted is granted.

It is hereby ordered that the indictment is dismissed.

It is further ordered that the People are granted leave to resubmit if they are so inclined. (CPL 210.20 [4].) The court is issuing a securing order simultaneously with this order of dismissal for 45 days, pursuant to CPL 210.45 (9).