Supreme Court, Nassau County, January 16, 2018

Madeline Singas, District Attorney, Mineola (Katie Zizza of counsel), for plaintiff.

Joseph Mure, Brooklyn, for defendant.

By decision and order dated November 9, 2017, this court dismissed the only two felony counts of the indictment—both charging the defendant with assault in the second degree (Penal Law § 120.05 [3])—finding that the prosecutor's incomplete instruction to the grand jury with respect to these counts impaired the integrity of the grand jury proceeding. By the same order, this court granted the People leave to re-present these charges to a properly charged grand jury. Instead of re-presenting these charges, the People, by papers dated December 8, 2017,^[FN1] move to reargue this court's decision and order. The defendant opposes this motion, by papers dated December 12, 2017. In determining the instant motion, this court has considered the People's affirmation in support of the motion; the affidavit of Joseph Mure, Esq.; and the minutes of the grand jury proceeding from May 9, 2017, May 19, 2017, May 22, 2017, May 31, 2017, and June 1, 2017. Upon these papers and for the reasons set forth herein, the People's motion for leave to reargue is granted and, upon reargument, this court adheres to its November 9, 2017 determination.

In New York State, the grand jury serves a vital role, acting as "a buffer between the State and [*2]its citizens, protecting the latter from unfounded and arbitrary accusations." (People v Calbud, Inc., 49 NY2d 389, 396 [1980].) The importance of this function is enshrined in our State Constitution, which provides that "no person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury." (NY Const, art I, § 6.) In furtherance of this fundamental guarantee, the legislature has created a grand jury in each county to "hear and examine evidence concerning offenses . . . and to take action with respect to such evidence as provided{**58 Misc 3d at 918} [by law]." (CPL 190.05.) While the grand jury has the exclusive authority to judge the facts with respect to cases that it hears, it is required to rely solely on the court and the district attorney as its legal advisors. (See CPL 190.25 [5], [6].)

It follows that, when the district attorney presents criminal charges for a grand jury to consider, the prosecutor is both empowered and required to instruct the jury on the law governing those charges. To be sure, as the People correctly point out, "a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law." (Calbud, 49 NY2d at 394.) The district attorney must, however, "give guidance adequate for the Grand Jury to carry out its function." (People v Valles, 62 NY2d 36, 38 [1984].) An instruction that is "incomplete or misleading" to the point that it "substantially undermine[s an] essential function [of the grand jury] . . . may fairly be said" to impair the integrity of the grand jury proceeding. (Calbud, 49 NY2d at 396.) Such impairment might require dismissal. (See id.; see also CPL 210.35 [5].)

In the case at bar, the District Attorney presented evidence to the grand jury that two Garden City police officers, Officer Brian Caputo and Officer Peter Hudak, observed the defendant driving a car having two defective taillights. When the Officers attempted to stop the defendant's car, the defendant refused to comply. The Officers eventually caught up with the defendant's car when traffic built up on Nassau Boulevard, north of Jericho Turnpike. Once there, the Officers opened the door to the defendant's car and attempted, unsuccessfully, to forcibly remove the defendant from the vehicle. In the course of that struggle, Officer Hudak sustained injuries. When the defendant drove away from the scene, the Officers gave chase, ultimately apprehending the defendant at Atlas Court in New Hyde Park. A third officer, Officer Lawrence Petraglia, who was called to assist with the arrest, also sustained injuries when the defendant kicked him while being handcuffed.

During her charge to the grand jury, the prosecutor began by stating "Let's start with Penal Law section 120.05 subdivision (iii), Assault in the Second Degree, and again, I'm asking you to consider two counts of this for two officers that were injured in this case Police Officer Hudat, [sic] and Patraglia [sic], so two separate counts." (Grand jury tr of June 1, 2017 at 7.) She went on to read and define the statutory elements of second-degree assault, largely mirroring the language in the statute.{**58 Misc 3d at 919}

While this court finds no error in the prosecutor's reading of the elements of the crime (see People v Cifuentes, 259 AD2d 558, 559 [2d Dept 1999]), the prosecutor did not adequately convey to the grand jury the distinction between the two counts of second-degree assault, or even that a distinction between the two counts existed at all. The grand jury was never instructed that, for the first count, it was required to consider each of the elements only as to Officer Hudak, while as to the second count it must view each of the elements only as they relate to Officer Petraglia.

Although it may seem clear to an attorney or judge who is well-versed in criminal practice that, [*3]given the evidence, this was the only plausible meaning of the prosecutor's instruction, 23 grand jurors cannot reasonably be expected to possess the same expertise. Rather, they are limited to applying the law as it is instructed to them by the court or prosecutor. (See CPL 190.25 [6].) Yet, by conflating the two counts and making only passing references to the names of the two injured Officers and adding "so two separate counts" at the end, the prosecutor left the grand jury to its own devices in deciding how to parse out the two counts that they were asked to consider.

Inasmuch as grand jury proceedings are conducted secretly (see CPL 190.25 [4] [a]), it is impossible for this court to know how the charges were put to a vote. It is not inconceivable that the grand jury foreperson, having received no other guidance from the prosecutor, indulged in the same expediency as she did, and called for a vote on the two counts of assault in the second degree as to the two injured Officers without distinguishing between them. It follows that, while there was certainly sufficient evidence before the grand jury to support an indictment for one count of assault in the second degree as to each of the Officers, there would be no way to know whether 12 or more jurors, as exclusive judges of the facts, actually concluded that there was reasonable cause to believe that the defendant committed such crimes.^[FN2] The deficiency in the prosecutor's legal instructions to the grand jury, when viewed{**58 Misc 3d at 920} in this light, speaks directly to the function of the grand jury in determining which crimes ought properly to have been charged in the indictment.

As such, in this court's view, the instructions impaired the integrity of the grand jury proceedings, rendering the two affected charges on the indictment subject to dismissal. The People contend that dismissal of these two counts is a drastic remedy. This court, however, cannot conceive of a lesser remedy that would sufficiently rehabilitate the grand jury proceeding at which the indictment was voted. Additionally, it is not insignificant that no prejudice attached to this court's dismissal of the two counts and that the People were granted leave to re-present them to another, properly-charged grand jury. (See e.g. People v Malan-Pomaeyna, 72 AD3d 988, 988-989 [2d Dept 2010].)

In sum, this court is now of the opinion, as it was on November 9, 2017, that the prosecutor's incomplete instructions to the grand jury impaired the integrity of the proceedings as it related to the first two counts charged on the indictment. Furthermore, dismissal with leave to re-present is the only effective remedy. Nothing in the People's motion papers compels the opposite conclusion. Accordingly, it is ordered that the People's motion for leave to reargue this court's November 9, 2017 decision and order is granted and, upon reargument, it is ordered that the first and second counts of the indictment are dismissed, and it is further ordered that the People are granted leave to re-present these two counts to another grand jury within 30 days from the date of entry of this decision and order.