County Court, Albany County, November 10, 2020

Stephen W. Herrick, Public Defender, Albany (Rebekah B. Sokol and Michael A. Feit of counsel), for defendant.

P. David Soares, District Attorney, Albany (Jennifer E. McCanney and Ariel R. Fallon of counsel), for plaintiff.

On July 22, 2020, defendant was charged by indictment with murder in the second degree, a class A-I felony (Penal Law § 125.25 [1]). Now, defendant, by omnibus motion, moves for the following relief:

Defendant moves for inspection of the grand jury minutes (testimony and legal instructions) and for dismissal of the indictment, pursuant to CPL 190.25 (6) and 210.35 (1) and (5). The court has granted defendant's motion to inspect and has reviewed the grand jury minutes and all relevant transcripts in camera.

Defendant first moves for an order dismissing the indictment, pursuant to CPL 190.25, 210.20 and 210.35 (1), claiming that the grand jury that returned his indictment was illegally constituted because the pool from which the grand jurors were selected "was not the universe of all persons summoned, but the skewed remainder after screening by the Commissioner of Jurors on July 15, 2020 and certainly after a number of prospective jurors refused to sit as a direct or indirect result of COVID-19" (defendant omni aff ¶ 46). No facts or affidavits from the referenced expert witness addressing the impact of COVID-19 on the grand jury selection process in Albany County, or other fact-based information has been submitted in support of defendant's motion and associated request for a fact-finding hearing to determine whether the grand jury was illegally constituted in this case. Detailing counsel's partially executed{**70 Misc 3d at 618} efforts in obtaining the necessary information and data to test the offered theory of constitutional deprivation does not establish a sufficient showing for the requested fact-finding hearing (see People v Vasquez, 61 AD3d 1109, 1111 [3d Dept 2009] [motion's conclusory assertions that Hispanics were systematically excluded from the grand jury pool premised upon "information and belief" and not supported by proof was properly denied]; People v Watkins, 77 AD3d 1403, 1404 [4th Dept 2010] ["defendant's conclusory allegations that the grand jury was improperly constituted are insufficient to raise a due process claim because defendant offered no evidence that the Oneida County Court systematically engaged in discriminatory practices during the selection of grand juries"], lv denied 15 NY3d 956 [2010]). Accordingly, defendant's motion to dismiss the indictment pursuant to CPL 210.35 (1), on grounds that the grand jury was illegally constituted, or alternatively, for a fact-finding hearing must be denied. Motion denied.

Defendant next moves to dismiss the indictment, pursuant to CPL 210.35 (5), alleging that the People failed to properly instruct the grand jurors regarding the potential for bias.

A grand jury proceeding is defective when it "fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35 [5]). While actual prejudice to a defendant need not be demonstrated to prevail (see People v Malloy, 166 AD3d 1302, 1303 [3d Dept 2018], affd 33 NY3d 1078 [2019], citing People v Sayavong, 83 NY2d 702, 709 [1994]), "[d]ismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury" (People v Malloy at 1303, quoting People v Sutherland, 104 AD3d 1064, 1066 [3d Dept 2013]).

Upon review of the transcript of the relevant July 13, 2020 grand jury orientation training conducted by Chief Assistant District Attorney David M. Rossi,^[FN1] the court finds that the grand jurors were more than sufficiently instructed about potential biases and conflicts concerning witnesses appearing before them. Rossi explained the procedure the jurors should{**70 Misc 3d at 619} follow upon recognizing a witness, provided examples of biased or conflicted relationships in varying degrees, acknowledged the existence of a wide range of relationships having the potential for a conflict and stressed the importance of the juror's responsibility to inform the prosecutor when they suspect a potential conflict with a grand jury witness.

That the People did not ask the grand jurors specifically tailored questions regarding potential personal relationships to the attorneys who may appear before them does not negate the People's otherwise demonstratable fair dealing in ensuring fairness in this case (see People v Revette, 48 AD3d 886, 887 [3d Dept 2008]; People v La Duca, 172 AD2d 1054, 1055 [4th Dept 1991]). Lastly, in denying defendant's CPL 210.35 (5) motion to dismiss the indictment, the court notes that the impaneling court's inquiry of a grand juror concerning potential bias and that court's decision relating thereto is a matter of record, preserved for appeal, and will not be reviewed by this court (see People v Davis, 162 Misc 2d 662, 664-665 [Sup Ct, Kings County 1994]). Motion denied.^[FN2]

Defendant, who did not testify before the grand jury, moves, pursuant to CPL 190.25 (6) and 210.35 (5), for dismissal of the indictment, alleging that the integrity of the grand jury was impaired by the prosecutor's failure to charge a legal instruction for the defense of justification: necessity as an emergency measure (see Penal Law § 35.05 [2]).^[FN3]

Initially, the court finds that arguments relating to perceived misunderstandings between counsel, speculations, criticisms{**70 Misc 3d at 620} and/or proffered justifications for litigation strategies irrelevant [*4]to the legal issue before the court which is: whether the facts presented to the July 22, 2020 grand jury required the People to provide a legal instruction for the defense of justification, rendering the proceeding defective and mandating dismissal of the indictment.

"[A] prosecutor's duty of fair dealing extends not only to the submission of evidence, but also to instructions on the law, for, by statute, responsibility for instructing the Grand Jury on the law rests solely with the court and the prosecutor, and the Grand Jury may not seek legal advice from any other source" (People v Lancaster, 69 NY2d 20, 26 [1986]).

"If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment" (People v Ball, 175 AD3d 987, 988-989 [4th Dept 2019], affd 35 NY3d 1009 [2020], quoting People v Graham, 148 AD3d 1517, 1519 [4th Dept 2017], and citing People v Valles, 62 NY2d 36, 38-39 [1984]; see People v Mitchell, 82 NY2d 509, 514-515 [1993]; People v Lancaster at 27).

If proved, the justification defense both "relieves a defendant of criminal liability in that his conduct is by statute deemed not criminal, but it also demands his immediate release" (People v Lancaster at 27-28 [citations omitted]). Thus, "where evidence establishes a potential defense of justification, prosecution may be needless and the Grand Jury should be charged on the law regarding that potential defense because its consideration is properly within that body's province" (People v Lancaster, 69 NY2d 20, 27-28 [1986] [emphasis added]). The People generally enjoy "broad discretion in presenting a case to the grand jury and need not 'present all of their evidence tending to exculpate the accused' " (People v Radesi, 11 AD3d 1007, 1007 [4th Dept 2004], lv denied 3 NY3d 760 [2004], quoting People v Mitchell, 82 NY2d 509, 515 [1993]; see People v Smith, 289 AD2d 1056, 1057 [2001], lv denied 98 NY2d 641 [2002]). However, where the evidence presented before a grand jury "supports a defense of justification, it must be charged" (People v Torres, 252 AD2d 60, 64-65 [1st Dept 1999] [emphasis added], lv denied 93 NY2d 1028 [1999]; see People v Mitchell at 514-515; People v Rosario, 173 Misc 2d 641, 642 [Sup Ct, Bronx County 1997]).{**70 Misc 3d at 621}

Here, the People's grand jury presentation included, among other witnesses, Albany Police Detective Anthony DiGiuseppe, who was asked to tell the jurors about his interview of defendant. DiGiuseppe testified, in relevant part, that defendant described himself as a heavy crack cocaine user, who knew the victim, Nicole J., from local Narcotics Anonymous meetings and that the two had plans that night to smoke crack and have sex. After describing his inability to perform sexually, he discussed Nicole J.'s purported desire to be tied up in a "bondage type of situation." Defendant retrieved a karate belt from his closet and detailed his bondage plan, which included tying Nicole J.'s hands to her neck. At some point during the sexual act, defendant said Nicole J. wrapped the belt around her own neck and encouraged him to pull it tighter along with her. While positioned behind Nicole J. on the bed, defendant said he joined in pulling the belt and while attempting to have sex he noticed that Nicole J. stopped making noise. In response, defendant explained that while in his drug-induced state, he grabbed the knife that they used to cut up the crack cocaine and while attempting to cut the karate belt off of her neck, they both fell between the wall and the bed and the knife went into Nicole J.'s neck.

DiGiuseppe further explained to the grand jury that defendant was aware Nicole J. had died and that he "freaked out" and stayed in the apartment distraught, drinking alcohol and smoking cigarettes. Defendant also said that he attempted to commit suicide by stabbing himself in the leg and arms and then sitting in the bathtub with the intent of bleeding out. Defendant explained that he left a few voicemails for his sister who lives in Utica, New York, and that he could [*5]not remember when the police arrived at his apartment and recalls waking up in the hospital.

In addition to testifying about his interview of defendant, DiGiuseppe also testified as to the investigation's independent confirmation of certain facts asserted by defendant in his interview with the police. DiGiuseppe told the grand jury that he personally viewed defendant to have numerous cuts on his legs and arms from trying to commit suicide. He also confirmed that, once defendant's sister received his voicemails, she contacted Utica law enforcement, who in turn contacted Albany law enforcement who were then dispatched to defendant's address for a welfare check. In addition, DiGiuseppe described his personal observations of the crime scene to include evidence{**70 Misc 3d at 622} of drug usage, a partially filled bloodied bathtub and a knife on the toilet.

A forensic pathologist also testified before the grand jury that, upon his examination of Nicole J.'s body, he found no signs of asphyxiation caused by the belt and that the wound on her neck was consistent with someone applying pressure and making a slicing motion from behind.

In determining whether the People were legally required (see CPL 190.25 [6]) to charge the grand jury with a justification charge, a trial court must view the grand jury record "in the light most favorable to the defendant" and dismissal of the indictment is only avoided where there is "no reasonable basis upon which to charge justification" based upon the evidence presented before the grand jury (see People v Torres, 252 AD2d 60, 64-65 [1st Dept 1999]; People v Samuels, 12 AD3d 695, 698 [2d Dept 2004]). "[W]here the evidence suggests that a complete defense such as justification may be present, the prosecutor must [also] charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution" (People v Waddell, 78 AD3d 1325, 1326 [3d Dept 2010] [emphasis added], lv denied 16 NY3d 837 [2011], citing People v Goetz, 68 NY2d 96 [1986]).

The People oppose defendant's motion by first arguing that "defendant cannot decline to testify and then ask for dismissal of the indictment because he hoped his story would be presented by the People." Then pivoting, the People acknowledge "present[ing] Defendant's explanation of the events surrounding the victim's death through the testimony of Det. DiGiuseppe" for the purpose of providing "the jury a full picture" (People's aff ¶ 22 [emphasis added]). After acknowledging that the forensic pathologist's testimony seemingly casts doubt on defendant's recollection of events, without explanation or reconciliation with the facts presented to the grand jury, the People summarily claim that "there was no affirmative defense in this case" and "no evidence to support a reasonable inference the Defendant was 'saving' the victim's life when he plunged the knife into her neck" (People's aff ¶ 22). The People present no argument concerning how the grand jury presentation lacked evidence suggesting that a complete defense such as justification may be present (see People v Waddell).

A prosecutor's

"obligation to instruct the Grand Jury concerning {**70 Misc 3d at 623}defenses must be defined with reference to the role of that body. 'The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution.' . . . Viewed from this perspective, the question of whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution" (People v Valles at 38, quoting People v Calbud, Inc., 49 NY2d 389, 394 [1980]).

The defense of justification: necessity [*6]as an emergency measure (see Penal Law § 35.05 [2]) is an exculpatory defense that would, if believed, result in a finding of no criminal liability (see generally People v Valles; People v Mitchell).

Here, the People were in exclusive control of the evidence they presented to the grand jury and they chose to elicit testimony and present evidence establishing a prima facie case for the charged crime as well as for the defense of justification: necessity as an emergency measure (see Penal Law § 35.05 [2]). That the prosecutor did not credit "defendant's version of events" and seemingly credited the pathologist's testimony is not only irrelevant to the present motion but antithetical to a prosecutor's dual functions before the grand jury—that of public officer and that of advocate (see People v Huston, 88 NY2d 400, 406 [1996]). In keeping with these dual roles, a prosecutor is " 'charged with the duty not only to secure indictments but also to see that justice is done' " (id., quoting People v Lancaster at 26). "With this potent authority, moreover, comes responsibility, including 'the prosecutor's duty of fair dealing' " (People v Huston at 406, quoting People v Pelchat, 62 NY2d 97, 104 [1984]). The duties and powers " 'bestowed upon the District Attorney by law . . . vest that official with substantial control over the Grand Jury proceedings' " and, as particularly relevant here, require " 'the exercise of completely impartial judgment and discretion' " (People v Huston at 406 [emphasis added], quoting People v Di Falco, 44 NY2d 482, 487 [1978]). Thus, it bears repeating that "the Grand Jury proceeding is not intended to be an adversary proceeding" (People v Lancaster at 26).

Upon consideration of the entirety of the facts presented to the grand jury, the court finds the People's evidence established a "potential defense of justification" (People v Lancaster at 28) and that the prosecutor's failure to provide that legal instruction{**70 Misc 3d at 624} impaired the integrity of the grand jury "to such a degree that the defendant may have been prejudiced by an unwarranted prosecution" (People v Samuels at 699; see CPL 210.35 [5]). Accordingly, defendant's motion is granted, and the indictment is dismissed, with leave granted to the People to re-present the case to another grand jury. Motion granted.

"conduct which would otherwise constitute an offense is justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder."