Defendant is charged under a three-count indictment filed April 5, 2022, with the offenses of: I. Grand Larceny in the Third Degree [Penal Law § 155.35(1)]; II. Defrauding the Government [Penal Law § 195.20]; and III. Official Misconduct [Penal Law § 195.00].

The People are represented by Special District Attorney Weeden A. Wetmore, Esq. (Chief Assistant District Attorney Susan Rider-Ulacco, Esq., and Assistant District Attorney Nicholas S. Line, Esq.). Defendant is represented by Schlather, Stumbar, Parks & Salk, LLP (Raymond M. Schlather, Esq.).

Defendant was arraigned and entered a not guilty plea on May 20, 2022. Defendant moves this Court by Notice of Motion, dated September 23, 2022, Attorney's Affirmation (R. Schlather, Esq.) affirmed, September 23, 2022, and Memorandum of Law, dated September 28, 2022, requesting, inter alia, dismissal of the indictment. The People filed an opposition Memorandum of Law, dated December 1, 2022. The Court heard oral arguments at the Schuyler County Courthouse on December 2, 2022.

The allegations are simple. Defendant was employed for fourteen years as the Village Clerk of the Village of Odessa from 2005-2019. In 2014, Defendant's job under the village budget was converted from hourly to salaried. Between the period of January 2012 and March 2019, Defendant is accused of receiving sick time and vacation time benefits amounting to approximately $11,000.00. The People allege that Defendant was not entitled to such benefits as she worked less than the threshold 25 hours per week. Defendant, who testified at Grand Jury, claims that she had a right to such benefits, as the 25 hours per week work requirement for benefit eligibility was applicable to hourly employees only, not a salaried employee, such as herself.

Defendant seeks dismissal of the indictment, arguing, 1) the Grand Jury proceeding was defective to such a degree that its integrity was impaired (CPL §190, CPL §210.35); 2) the [*2]evidence before the Grand Jury was legally insufficient (CPL §190.65); 3) the Indictment is defective upon its face (CPL§ 200.50); and 4) dismissal is warranted in the interests of justice (CPL §210.40). The People oppose all such relief.

CPL § 210.20(1)(c) provides that the Court may dismiss an indictment if the "grand jury proceeding was defective, with the meaning of section 210.35." A grand jury proceeding is defective when it "fails to conform to the requirements of [CPL Article 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result." CPL §210.35(5). A defendant is not required to establish "actual prejudice" if a grand jury proceeding is defective, rather a defendant merely needs to make the requisite showing of "the possibility of prejudice." People v. DiFalco, 44 NY2d 482, 487 (1978).

Defendant argues that the People's failure to charge the Grand Jury with the defense of "claim of right" is a defect within the Grand Jury proceedings which requires dismissal. This is not a close case. The People argue, in their Memorandum of Law, that when the Court reviews the evidence in the "light most favorable to the defendant *** after a full and detailed review of the Grand Jury presentation it is clear that the evidence did not suggest a 'claim of right' defense." People's Memorandum at 2. The Court disagrees. Although the People may quote the appropriate standard of review, their argument is most certainly not based upon the standard of the light most favorable to the defendant. Rather, in the Court's view, the People in actuality, merely proceed to argue from the People's view of the evidence. However, when truly employing the standard of the light most favorable to the defendant, this is not a difficult issue to resolve.

The Defendant testified before the Grand Jury. The Defendant asserted she had a right to the benefits. The Defendant stated the reason she believed she was entitled to obtain the sick leave and vacation benefits. Defendant testified that she relied upon the 1999 employee benefits policy and further that in 2014 the village trustees "decided to change me from hourly to salary" and "I never received a letter stating that my benefits were changing." GJ at 100-111. Defendant added, "I thought I did everything right." GJ at 103 [emphasis added]. Further, she testified, "I was not told to stop accruing by any of the board members." GJ at 115. Defendant added, "I did my job." GJ at 138. The Court further notes that during her questioning of the Defendant, the assistant district attorney commented, " we may disagree on whether or not you were entitled to any pay, whether it was sick time or vacation time." GJ at 138 [emphasis added].

The claim of right defense is an ordinary defense, not an affirmative defense, and consequently if a good faith claim of right is raised by the defendant, the People must disprove such claim of right beyond a reasonable doubt. People v. Zona, 14 NY3d 488 (2010). Here, the People failed to provide the Grand Jury with the claim of right defense instructions. In People v. Valles, 62 NY2d 36, 38 (1984), the Court of Appeals explained:

Although the Grand Jury need not be charged with the same degree of precision as the petit jury, the District Attorney must give guidance adequate for the Grand Jury to carry out its function. We have held that, in the usual case, it is "sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" (People v Calbud, Inc., 49 NY2d 389, 394-395). In this connection, we have recognized that a failure to furnish adequate or complete instructions may, in a given case, render the Grand Jury proceedings defective, mandating dismissal of the indictment (id., at p 395; CPL 210.20, [*3]subd 1, par [c]; 210.35, subd 5).

The analysis of an almost identical situation by the Second Department in People v. Tunit, 149 AD3d 1110 (2nd Dept. 2017) is instructive, persuasive, and dispositive of the issue before this Court raised in Defendant's dismissal motion. In Tunit, the defendant had been indicted on multiple counts of grand larceny in the second, third, and fourth degree for allegedly embezzling funds from the complainant's business. The defendant testified before the grand jury and claimed he was not an employee but rather a business partner of the complainant and consequently was entitled to the funds at issue. The District Attorney did not instruct the grand jury with the claim of right defense. The trial court denied the Defendant's motion to dismiss the indictment upon the grounds that the legal instructions to the grand jury were deficient for failure to instruct on the claim of right defense. The defendant was convicted after a jury trial. The Second Department vacated the defendant's convictions and dismissed the indictment due to the People's failure to instruct the grand jury on the ordinary claim of right defense. The Tunit Court explained:

" '[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'" (People v. Grant, 113 AD3d 875, 876, quoting People v. Wilson, 228 AD2d 708, 709; see People v. Mitchell, 82 NY2d 509, 514; People v. Lancaster, 69 NY2d 20, 26—27; People v. Valles, 62 NY2d 36, 38). If the District Attorney 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(see CPL 210.35[5]; People v. Valles, 62 NY2d at 38; People v. Calbud, Inc., 49 NY2d at 395—396). Tunit at 1111 [emphasis added].

Further, the Tunit Court noted that the evidence must be viewed in the "light most favorable to the defendant" when determining whether to charge the claim of right defense. Id., citing, People v. Padgett, 60 NY2d 142 (1983). Consequently, when employing the proper standard of the light most favorable to the Defendant, this case is not a close call. The Defendant asserted under oath she believed she had a "right" to the benefits based upon her interpretation of the 1999 handbook and the fact that her job was re-categorized to salaried in 2014. Even the assistant district attorney commented on different viewpoints and noted before the grand jury that " we may disagree on whether or not you were entitled to any pay, whether it was sick time or vacation time." The ordinary defense of claim of right was required to be charged to the Grand Jury. The People's failure to instruct the Grand Jury on this defense was error as a matter of law. The Grand Jury proceedings were defective within the meaning of CPL §210.35(5), and the indictment must be dismissed.

Aside from the failure to charge the claim of right defense, Defendant raises a litany of additional objections concerning this particular Grand Jury presentation. Although the Court has already ruled that the failure to charge the claim of right defense mandates dismissal as a matter of law, some of the Defendant's other objections warrant comment, particularly if the People intend to seek leave to represent this matter to a new grand jury. The Defendant complains that the People provided an incorrect definition of "benefit" [Penal Law §10.00(17)] both in the initial and concluding instructions to the Grand Jury. The record is unambiguous. The People provided an incorrect definition of "benefit" on both occasions. Additionally, Defendant raises [*4]numerous objections claiming, "the prosecutors repeatedly asked leading questions, injected their own conclusory views of the evidence [and] asked for inadmissible conclusions of witnesses." Attorney Schlather's Affirmation at par. 11(d)(i.-xxi). The Court agrees that items i, ii, iii, iv, v, vi, vii, ix, x, xi, xiii, xvi, xvii, xviii, xix were improper in that they were leading questions, they elicited inadmissible opinion testimony, or, most significantly, they elicited improper opinion testimony concerning the ultimate conclusion of criminality (items iv, xiii, and xvii). Items viii, xii, xiv, and xv are close calls, and the Court declines to rule in light of the dismissal of this indictment.

In addition to the errors enumerated above, the most significant error occurred when the People erroneously informed a grand juror, immediately after Defendant had concluded her testimony, that the grand juror could not ask her any questions. GJ at 141. At no time did the People inform the Grand Jury that it in fact had a right to call Defendant back to answer any additional questions. After Defendant had left the Grand Jury room, a grand juror, still obviously considering Defendant's testimony had questions about "tracking hours for retirement" and "policy specifically regarding salary" (GJ at 141-143). Instead of informing the grand juror that the Defendant could be recalled to answer the relevant questions, the assistant district attorney chose to provide unsworn testimony and stated, "There's only one policy regarding leave time that was controlling at that time. It was the 1999 policy. It does not make a reference to whether it was salaried or hourly, so under that assumption it would probably apply to both." GJ at 143. In short, the Defendant, in an effort to exercise her right to tell her version of the events to the Grand Jury investigating her was prevented from fully doing so. The People prohibited the Grand Jury from asking the Defendant relevant questions. And further, the People compounded their error by offering unsworn testimony in response to the Grand Jury's questions, when the Defendant or other additional witnesses were the appropriate individuals to properly respond to such inquiry. Even when setting aside the error as a matter of law for failing to charge the claim of right defense, when considering all of the other above enumerated errors, the Defendant has certainly established "the possibility of prejudice." People v. DiFalco, 44 NY2d 482, 487 (1978). While it is true that isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings, where, as here, misleading legal instructions are provided, the proceedings are replete with improperly leading questions, improper opinion evidence, improper curtailment of the Defendant's right to testify, and the improper offering of unsworn incompetent testimony by the presenting assistant district attorney, the integrity of the Grand Jury proceedings has been been so impaired that dismissal of the indictment is warranted. The "cumulative impact" of the prosecutor's errors during presentation sufficiently impaired the integrity of the proceedings as to mandate dismissal of the indictment. People v. Huston, 88 NY2d 400, 411 (1996).

The Defendant has also raised several other challenges to the indictment. The indictment on its face is not defective and with respect to each count provides a sufficient and concise factual statement which would support every element of each crime. CPL §200.50(7)(a). As the Court has ruled that the integrity of the grand jury proceedings was impaired to such an extent that the Defendant was actually prejudiced, it is both unnecessary, and based upon the number of errors which permeated the presentation, inappropriate to analyze whether the evidence was legally sufficient. The Defendant also claims error for failure to charge "course of conduct," duplicity, and failure to differentiate between grand larceny and defrauding the government. In light of the above articulated grounds of dismissal, the Court declines to rule on these subtle [*5]issues, which for now, shall remain academic.

While this court will not reveal the exact grand jury vote, the Court will comment, that even with the pervasive errors, none of the votes on each count were unanimous or particularly overwhelming, as is often the case.

Defendant's motion to dismiss the indictment pursuant to CPL §210.35(5) is hereby GRANTED and the indictment is DISMISSED.

The People must seek leave of this Court pursuant to CPL §210.20(4) in order to submit this matter to another grand jury.

This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.