Brief Factual Outline

This indictment is one of five charging Eric Ulrich, a former New York City official, and multiple co-defendants with bribery and related crimes. In a related unpublished decision and order issued today (the "related decision"), the court has denied all the motions to dismiss four of the indictments or preclude or suppress evidence related to them. The court has granted the motion to dismiss the instant indictment, charging Ulrich and Defendant Mark Caller with bribery, bribe receiving and a conspiracy to commit those crimes for the reasons outlined here.^[FN1]

Mr. Ulrich is a former member of the New York City Council from February of 2009 to December of 2021, a Senior Advisor to Mayor Eric Adams from January of 2022 to April of 2022 and a New York City Buildings ("DOB") Commissioner in the Adams' administration from May of 2022 to November of 2022. He is charged in each of the five indictments and is the fulcrum around which the criminality alleged in them occurred. Mark Caller is a real estate developer and the founder and Chief Executive Officer of the Marcal group, a real estate development company active in developing residential and commercial properties in New York City and other states. The charges in the five indictments primarily concern allegations that the [*2]defendants other than Mr. Ulrich conspired to and did commit bribery crimes to influence Mr. Ulrich's official actions. Mr. Ulrich is charged with bribe receiving crimes with respect to these actions and in one indictment also charged with offering false instruments for filing. The alleged bribery schemes had little in common except that they all operated to influence Mr. Ulrich. The defendants were alleged to have given Ulrich cash and other gifts in exchange for official actions which benefitted them. The People presented evidence to the grand jury which established that Mr. Ulrich lost large amounts of money gambling and posited that it was these extensive gambling losses which became a primary motivation for Ulrich to exchange official actions for financial rewards.

The grand jury evidence in these cases included extensive evidence from wiretaps on the phones of Mr. Ulrich and others. The wiretaps ceased on November 1, 2022. Prosecutors also conducted surveillance, executed search warrants on the homes, businesses, computers and phones of targets and obtained voluminous financial and other records. The District Attorney of New York County worked with the New York City Department of Investigation in conducting the investigation. This court oversaw these investigations and approved the vast bulk of the court orders through which evidence was obtained. Initially, the investigation focused on Mr. Ulrich and defendants other than Mr. Caller. Mr. Caller became an investigative focus after wiretap and other evidence led the People to conclude that Caller, like the other defendants, had sought to benefit Ulrich to influence his official actions.

This indictment charges Mr. Ulrich and Mark Caller with Conspiracy in the Fourth Degree (PL § 105.10 (1)) alleging the two conspired to commit the crime of Bribery and Bribe Receiving in the Second Degree during the period from December 17th 2021 to November 1, 2022. Caller is not charged in the other indictments. The indictment alleges that Ulrich used his position as DOB Commissioner to benefit Caller's real estate company in exchange for a discounted beachfront apartment and free amenities at that location. Specifically, it is alleged that Ulrich conspired to influence the New York City Department of Planning to approve a zoning change for the benefit of one of Caller's development projects, expedite requests to DOB for Mr. Caller's projects and influence city agencies to conduct an inspection of a homeless housing development adjacent to the apartment Ulrich sought to purchase in one of Caller's buildings. Mr. Caller is also charged with Bribery in the Second Degree (PL § 200.03) and Mr. Ulrich with Bribe Receiving in the Second Degree (PL § 200.11) both Class C felonies.

The alleged scheme was simple. Ulrich, it is alleged, actively assisted Caller by interceding with City government officials and entities to benefit Caller's real estate projects. Caller in turn gave Ulrich a discounted beach front apartment as part of an implicit quid pro quo for providing that assistance. Despite extended wiretaps on Ulrich's phone and the recovery of text messages between Ulrich and Caller, there was never any evidence developed that Ulrich and Caller had an explicit agreement to trade monetary benefits for government action although, as explained in the legal outline below, no such explicit agreement is required under the bribery statutes.

The grand jury did not hear extensive evidence regarding Mr. Caller's background and the People certainly had no obligation to present that. To understand the context of these charges, however, in the court's view, it is useful to have a brief understanding of the work Caller generally did and how he represented himself. The following is from the Marcal Group's public website (information which was not presented to the grand jury):

To date, the Marcal Group has successfully purchased and repositioned over $250 million in residential, medical, and office properties across the country. With over a million square feet of ground up development currently underway, and an additional five million square feet currently under its management, Marcal's combined strengths as a syndicator of real estate deals, and a design-build company for prestigious specialty projects has earned it a coveted position of distinction amongst the most dynamic players in the field.^[FN2]

The site goes on to note the group's collaborations with the Community Preservation Corporation ("CPC"), Maimonides Medical Center and the New York City Housing Preservation and Development Agency ("HPD"). Id. Both HPD and CPC seek to develop affordable housing in New York City. CPC asserts that it has invested $16 billion in its housing developments and describes itself as "a nonprofit affordable housing and community revitalization finance company".^[FN3] The court is not aware that Caller has ever been implicated in a crime before. Among the attributes he sought to publicly convey were his "unsurpassed integrity" and "breadth of compliance capabilities".^[FN4]

The court has determined to take the rare step of dismissing this indictment for three related reasons. First, it is clear to the court that the indictment alleged bribery crimes for a three-month period (from December 17, 2021 until March 18, 2022) when there was no evidence of any kind that Caller provided, intended to provide, attempted to provide or discussed providing any benefit to Ulrich. March 19, 2022 is the first date the grand jury evidence indicated that Ulrich and Caller began discussing the apartment purchase and rental which the People alleged constituted Caller's bribe. Even then it was Ulrich — not Caller — who initially suggested the transaction. Were this the only infirmity in the indictment, as discussed below, the remedy would be to simply change the indictment's time period to strike the invalid portion of it. But the fact that the grand jury voted an indictment during a period when there was no evidence such crimes occurred, in this case, also served to undermine the entire indictment and was related to the two issues next discussed.

Second, it is clear to the court that there was not reasonable cause to believe the sale and rental terms Caller provided to Ulrich for the apartments Ulrich sought provided a benefit to Ulrich different than what another purchaser in Ulrich's position who did not benefit Caller would have received. In the court's view, there is clearly not reasonable cause to believe Caller bribed, attempted to bride or conspired to bribe Ulrich. This too, however, in the court's view, was not alone a sufficient basis to dismiss the indictment. Under the liberal standards applicable to grand jury sufficiency, discussed below, evidence must be viewed in a light most favorable to the People. Under that standard, the evidence of bribery which the grand jury heard was legally [*3]sufficient — although, in the court's view, did not even come close to meeting the reasonable cause standard.

When combined with the final infirmity, however, in the court's view the proper remedy was the indictment's dismissal. Ulrich had been providing lawful assistance to Caller as a public official for years. The People had extensive evidence of these interactions but never presented them to the grand jury. The court does not ascribe that to bad faith but the failure of the People to present what, in the court's view, was extensive exculpatory evidence, undermined the indictment's validity. The grand jury heard evidence that Ulrich benefitted Caller over a brief period and then Caller provided what the People alleged was a benefit to Ulrich. But that was not an accurate portrayal of their relationship. The grand jury did not get the "full story". In fact, Ulrich had been assisting Caller over an extended period. Had the grand jury knew that they would have been presented with what, in the court's view, was an implausible argument: that having received lawful assistance from Ulrich for years, Caller one day decided to bribe Ulrich to continue to receive the same assistance.

In a grand jury proceeding "legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt". People v. Baldner, 44 NY3d 999 (2025) (quotation omitted). To determine whether an indictment should be dismissed, a reviewing court must review "whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury". People v. Bello, 92 NY2d 523, 525 (1998) (quotation omitted). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes and whether the Grand Jury could rationally have drawn the guilty inference". Id., 92 NY2d at 526 (quotations omitted). "Innocent inferences" which could be drawn from the proven facts are "irrelevant" to the sufficiency determination if the Grand Jury could have drawn guilty inferences. Id.

In addition to reviewing grand jury presentments for legal sufficiency, courts also must scrutinize the integrity of grand jury proceedings. Pursuant to CPL 210.35 (5) an indictment should be dismissed, inter alia, if it fails conform to the requirements of Article 190 of the criminal procedure law "to such degree that the integrity thereof is impaired and prejudice to the defendant may result".

The charges here concern the crimes of bribery and bribe receiving involving public servants. The base crime of bribery, Bribery in the Third Degree, occurs when a person "confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public's servant's vote, opinion, judgement, action, decision or exercise of discretion as a public servant will thereby be influenced". PL § 200.00. The crime is elevated to the second degree when the benefit exceeds $5000. PL § 200.03. The flip side of bribery is the crime of bribe receiving. This occurs when the defendant is a public servant and "solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his or her vote, opinion, judgement, action, decision or exercise of discretion as a public servant will thereby be influenced." PL § 200.03. The crime is again elevated to the second [*4]degree when the amount of the benefit is more than $5000. PL § 200.11. There is no question in this case that at all times relevant to these charges Mr. Ulrich was a public servant. See Penal Law § 10.00 (15).

The term "benefit" is broadly defined and includes both gains to the beneficiary as well as a third person pursuant to the desire and consent of the beneficiary. It can include more than financial gain. People v. Feerick, 93 NY2d 433, 447 (1999); PL § 10.00 (17) (defining the term "benefit" as including "any gain or advantage to the beneficiary").

An "agreement or understanding" under the statute may be evidenced in one of two ways. First, the agreement or understanding may be mutual. "Alternatively, the 'understanding' must be at least a unilateral 'perception or belief' in the mind of the bribe giver that the bribe 'will' influence the receiver's conduct." Donnino, Practice Commentary to PL § 200.00; quoting People v. Bac Tan, 80 NY2d 170 (1982). If the bribe giver only intends or hopes to influence the bribe receiver's conduct, however, the completed crime will not be committed. Under that circumstance the bribe giver's conduct may constitute an attempt to the commit the crime. Donnino Practice Commentary PL § 200.00; People v. Sanoguet, 157 Misc 2d 771 (Sup Ct., 1993). The crime of bribery and bribe receiving are complete when the requisite agreement or understanding is reached. People v. Charles, 61 NY2d 321 (1984).

Bribery may be proven through circumstantial evidence. People v. Logan, 145 AD2d 437 (2nd Dept 1988), aff'd 74 NY2d 859. It is not unusual, moreover, for the crimes of bribery and bribe receiving to be committed without evidence of an explicit quid pro quo. Rather, persons committing such crimes may do so while scrupulously avoiding the creation of any explicit evidence of an agreement. See People v. Bac Tran, 80 NY2d 170, 178 (1992) ("True, these cases are usually circumstantial and inferential; the underlying crimes are, after all, often perpetrated subtly with winks, nods and walks in the park".)

Conspiracy in the Fourth Degree is defined, as relevant here, as occurring when "with intent that conduct constituting a class B or Class C felony be performed" a person "agrees with one or more persons to engage in or cause the performance of such conduct". PL 105.10 (1). As noted supra, the conspiracy alleged here was to commit the crimes of bribery and bribe receiving.

Beginning in December of 2015 Caller and the Marcal Group purchased properties in Far Rockaway. Two, at 150 Beach 116th Street and 155 Beach 115th Street were adjacent to a dilapidated homeless shelter located at 158 Beach 116th Street. Shelter residents had been an ongoing concern to the community for many years and had resulted in multiple police reports. Eric Ulrich, as a city council member, had contacted the city as early as 2016 about his concerns about the property. In 2018, the property was turned into an emergency homeless shelter.

Caller had begun to ask local officials for assistance regarding delays with building permits and approvals for the two above-referenced Rockaway properties. Caller sent multiple emails to Ulrich about these requests beginning in May of 2017 — almost five years before there was any evidence Caller provided any alleged benefit to Ulrich. The first date on which the grand jury heard any evidence that the two discussed Caller providing any alleged benefit to Ulrich was March 19, 2022 when Ulrich first contacted Caller about possibly buying an apartment in Caller's Beach 116th street building. Caller asserts and the People do not deny that [*5]the prosecution was in possession of emails and Whats App messages evidencing Ulrich and Caller's long-standing prior relationship during which Ulrich repeatedly provided the same assistance to Caller which the People alleged became criminal beginning in December of 2021. But this evidence was not provided to the grand jury.

Caller continued to reach out to Ulrich for assistance in 2020 and 2021. Caller recounts 12 specific communications he made to Ulrich about issues regarding his projects or the homeless shelter during this period. Ulrich then took actions to try to assist Caller with his requests. All these events occurred prior to any discussion between Ulrich and Caller about an apartment Ulrich might purchase.

After Ulrich was appointed as a senior advisor to the Mayor in January of 2022, Caller contacted Ulrich 6 times between January 11 and February 11 to attempt to obtain help with the Beach 116th Street project. On February 21, Ulrich, Caller, Mayor Adams and others met at a restaurant in Queens after which Ulrich again contacted the Department of City Planning ("DCP") about the Beach 116th Street project. Ulrich then asked a city planning official to communicate with Caller. Again, all these contacts preceded any evidence of an alleged benefit Caller provided Ulrich. Ulrich continued his efforts to assist Caller with contacts to DCP on February 22 and March 9, 2022.

Among these communications, on November 9, 2021, shortly following the mayoral election, Caller contacted Ulrich to ask for his help in rezoning one of his proposed developments located at 155 Beach 115th Street, across from another building which housed the apartment Ulrich sought to purchase. The purpose of the rezoning was to allow Caller to build a larger building on the site. Caller contacted Ulrich again about the issue around February of 2022 after Ulrich had been appointed as a Senior Advisor to Mayor Adams. Caller told Ulrich millions of dollars were at stake and his partners were anxious for help from the new administration. The change would have to be approved by DCP.

According to the People, Ulrich attempted to influence the DCP "by engaging in multiple communications with the newly appointed DCP Commissioner" in around February of 2022, again prior to the time Caller provided any alleged benefit to Ulrich.^[FN5] The grand jury evidence also indicated that the zoning change would require Caller to include affordable housing units as part of his development and that the change was supported by Ulrich's successor on the City Council.^[FN6] On the other hand, there was also significant community opposition to more dense [*6]development at the site.^[FN7]

At Ulrich's urging, the DCP Commissioner then contacted Caller, and the Commissioner told Ulrich on March 9, 2022 that he was working on a way for Caller to achieve most of his goals. On April 6, 2022, however, DCP said they would not be able to implement the zoning change Caller sought but could allow a lesser zoning change which would allow for a slightly larger building. Thus, prior to the alleged benefit Caller began to provide to Ulrich concerning the apartment purchase (which began on March 19, 2022) DCP, at Ulrich's urging, worked to provide Caller with the variance he sought. After the alleged benefit was conferred, however, DCP reported that they would not provide Caller with what he sought and would provide him a much less significant variance. The grand jury evidence indicated that DCP made that decision in accordance with a variety of apparently appropriate public policy considerations. Ultimately, even this proposal did not go forward due to timing constraints.^[FN8]

Ulrich continued to attempt to assist Caller with new development efforts in the Rockaways upon being named DOB Commissioner. The grand jury learned, however, that with respect to a new development Caller was attempting to build with Ulrich's assistance, the site was still an empty lot in July of 2023.^[FN9]

On March 19, 2022, Ulrich told Caller that he was looking for a new place to live. Caller offered to help him and asked if Ulrich wanted to look at one of his Rockaway apartments.^[FN10] . On March 20, 2022 the two met to view an apartment at Beach 116th Street. On March 22, 2022, Caller told Ulrich the apartment "was officially on the market for $637,000" but that he would offer it to Ulrich for $625,000 which Ulrich then opined was a good price.^[FN11] The court notes that this was a little less than a 2% discount from the $637,000 listed price. Caller later told Ulrich that the $625,000 price would depend on lender approval. Caller also told Ulrich that he could receive free parking, worth $200 per month, and that he could lease the apartment for $2000 per month and apply those lease payments to his down payment on the apartment. When Ulrich eventually moved into the building he actually paid for his parking since the garage had been taken over by an outside entity which charged all the tenants for parking. Caller also told Ulrich the seller would cover closing costs. Annual carrying charges would be $7,122. [Property taxes would be an additional expense]. According to Caller, in a phone call between Ulrich and Michael Mazzio (a defendant in one of the other related indictments), Ulrich said comparable [*7]apartments in the neighborhood were going for between $625,00-$635,000.^[FN12]

Ulrich also expressed interest in a different apartment in the same building, Apt. 5-J. Caller told Ulrich he couldn't offer the same price for this apartment but would offer a fair price. Ulrich later told another person that this apartment was listed for $705,000 but that Ulrich would be getting it for $30,000 less and would also be able to use his first year's rent towards his down payment. Ulrich messaged Caller to ask if Caller had spoken to his partners about the price for the apartment.^[FN13] On March 29, 2022 Caller told Ulrich he had approval to sell the apartment for $650,000. Ulrich reported that Caller had told him that Caller had spoken to his sons about the price [Caller's sons also apparently worked for Marcal] and that it could not be reduced further.^[FN14] Caller told Ulrich that he would have the right to apply his rent to the purchase price if he purchased the apartment within a specified period. According to Caller, he had offered this same concession to other prospective purchasers and the lender had approved it being provided to Ulrich.^[FN15] Ulrich told Caller that he deserved credit for investing on the block because "[t]here are homeless everywhere during the day. I can't believe how bad it is".^[FN16]

Caller structured Ulrich's lease so he would get the first three months free then pay the standard rental rate for the remainder of the annual lease term, effectively giving Ulrich a reduced rental rate for the year. In a conversation with his girlfriend, who was going to live in the apartment with him, Ulrich said that Caller had told him that paying a reduced rent for the year, rather than getting three months free rent and then paying the standard rent, would "look bad for you and me". Ulrich also said he was concerned about how this would look now that he was the DOB Commissioner and wondered whether his rental payment records could be subpoenaed. On the other hand, Ulrich also told his girlfriend that Caller had told him the arrangement was "very common".^[FN17]

Ulrich reported to Caller on March 24th that he had a friend also interested in buying an apartment.^[FN18] Both Ulrich and Caller discussed their strong preference to eliminate the homeless shelter across from the apartment Ulrich wanted to buy. Caller planned to build another building across the street. Ulrich expressed interest in keeping furniture which was already in the apartment he was seeking to purchase. The annual estimated common charges for this apartment were $7,578, with taxes estimated at $11,721. Caller told Ulrich he could reduce the property taxes by 25-40% by "filing".

According to Caller, he told Ulrich the building sponsor would pay for Ulrich's closing costs and that the building sponsor had to approve concessions he was providing to Ulrich.^[FN19] Caller asserts that Ulrich brought another purchaser to the building, who purchased an apartment for close to $1 million.^[FN20] Ulrich introduced Jimmy Oddo to Caller and Oddo considered buying an apartment but, according to Caller, decided not to do so because the area was not safe.^[FN21] Oddo later succeeded Ulrich as DOB Commissioner and was a former Adams administration official and Staten Island Borough President. In connection with that discussion, according to Caller, Ulrich messaged Caller on March 29th, after Ulrich and Caller resolved the terms of Ulrich's purchase and Ulrich introduced Oddo to Caller. The message from Ulrich to Caller was: "it was a very productive day for both of us".^[FN22]

Ulrich later reported to a third party that Caller had dropped the price for Apt. 5-J to $650.000.^[FN23] During the grand jury presentment, a DA investigator was then asked whether Ulrich had also reported he would be getting window treatments, to which the investigator replied yes. The investigator was then asked: "And that's a couple of thousand right then and there [something Ulrich had reported in a conversation]"? to which the investigator replied: "Yes".^[FN24] Ulrich later paid Caller for a couch. The court understands that Ulrich eventually moved into the more expensive apartment with an option to purchase it for $650,000 and had three months of the rent waived.

The grand jury heard evidence that Ulrich, as a senior advisor to the Mayor, made multiple contacts to city officials to attempt to have the City order the shelter across from the apartment he sought to purchase, at 158 Beach 116th Street, to be vacated. There is no evidence that during these efforts Ulrich ever disclosed that he was seeking buy an apartment across the street. On March 24th, 2022, Ulrich began a conversation with Caller by telling Caller that the homeless shelter had to be removed. Caller expressed frustration because while he had been successful in buying other dilapidated properties in the area, the owners of the homeless shelter, in his view, had demanded an exorbitant price, because they had significant income from the shelter. On March 28, 2022, Caller contacted the local Assemblywoman about closing the shelter. On March 29, 2022, in a call with a third party, Ulrich said the homeless shelter would be closed by the end of next week. Caller, in his Omnibus Memorandum, provided examples of the significant problems neighborhood residents perceived with the shelter around the time [*8]Ulrich sought to purchase the apartment.^[FN25] The grand jury evidence made clear that these issues had a significant impact on the market for Caller's developments.

The grand jury heard evidence that as Caller and Ulrich discussed Ulrich's purchase of an apartment in Caller's building, Ulrich was continuing his advocacy to take steps which would eliminate the homeless shelter which would be across the street from Ulrich's new apartment. In a call on April 4, 2022, Ulrich contacted city employees about actions which could result in the shelter being closed and discussed assisting Caller with rezoning permits for the development at 155 Beach 115th street. Ulrich and Caller discussed Caller's concerns about getting plans for the Beach 116th Street project reviewed on an expedited basis due to the upcoming scheduled expiration of the 421-a tax abatement program. This program provides real estate developers with tax abatements in return for increasing the affordability of apartments. Ulrich then assisted with that effort. The 421-a program was eventually extended. On May 13, 2022 Ulrich initiated a three-way call with Caller and a DOB representative about the Beach 116th Street project. On multiple occasions, Ulrich and Caller discussed Ulrich's apartment purchase during the same conversations in which they discussed Ulrich's efforts to help Caller with his development work.

Ulrich was appointed DOB Commissioner on April 21, 2022. At the same time Ulrich informed Caller of his appointment, he also asked about moving into the apartment. Ulrich then told Caller that further contacts between them, now that Ulrich was the DOB Commissioner, should go through elected officials. Ulrich continued to assist Caller with his development projects after Ulrich became DOB Commissioner, however and Caller continued to contact Ulrich. The grand jury heard evidence of discussions between Ulrich and Caller with respect to assistance Ulrich was attempting to provide to Caller for months after Ulrich was appointed DOB Commissioner.

Caller says that he and Ulrich were close, long-time friends. He asserts that "Caller was in contact with Ulrich constantly regarding numerous personal matters". The two had daughters about the same age and Caller had helped Ulrich set up a room for his daughter to live in when she stayed with Ulrich.^[FN26] Ulrich's daughter lived with Ulrich's former wife and sometimes stayed with Ulrich.

One of Caller's development projects called for a new building to be constructed at 11-19 Foam Place at the corner of Smith Place in Queens. According to Caller this development would [*9]add affordable housing to the area and be focused on veterans.^[FN27] The issue with this development was that, although Smith Place had been recognized by the City as a public use and public street, it had never been "mapped" as a public street. The significance of having the street mapped is that the Foam Place development would then be recognized as a corner lot which would confer significant zoning benefits. The mapping determination would be made by DOB. The grand jury heard evidence that this issue was raised by the building's architect to DOB with copies of a communication to the Marcal Group beginning on March 29. 2022 (after Ulrich and Caller began discussing the apartment purchase). Caller had told Ulrich that 30% of the apartments in the development would be affordable.

During a call on March 29, 2022, Ulrich and Caller discussed furniture and window treatments for the apartment Ulrich was seeking and also discussed Ulrich's efforts to contact the City Planning Department about the Foam Place development. Again, the grand jury heard evidence that Ulrich and Caller discussed Ulrich's efforts to advocate for Caller's zoning preferences during the same conversations in which they discussed the apartment purchase. Ulrich contacted DOB about the development on April 7th and April 12th of 2022.^[FN28] The grand jury learned that construction on this development never moved forward.^[FN29]

The indictment alleges a corrupt agreement or understanding by Caller to bribe Ulrich which began on December 17, 2021 and ended on November 1, 2022. The first problem with the indictment is that there is no evidence any such understanding or agreement possibly occurred prior to the first date Ulrich spoke to Caller about his interest in an apartment on March 19, 2022. Even then it was Ulrich — not Caller, who raised the subject. Thus, the indictment, in the court's view, clearly must be dismissed at least with respect to any conduct which occurred prior to March 19, 2022. December 17, 2021 was apparently pegged by prosecutors as the beginning of the bribery scheme because it was on this date that Ulrich told Caller that Ulrich would be part of the Adams administration's "inner circle".^[FN30]

The People, in their response to the Omnibus motions, responded to this argument by arguing that, despite the lack of any evidence of a quid pro quo or corrupt understanding prior to March 19, 2022, the grand jury was entitled to conclude such an agreement or understanding existed:

The defendants, therefore, were unlikely to memorialize the exact start date of their illicit agreement. The grand jury after determining that an agreement in fact occurred is then required to infer from available evidence when the agreement started. The personalized attention CALLER received from ULRICH after being named to the Adams administration coupled with CALLER'S reflexive response to find ULRICH an apartment in his building suggests a preexisting relationship (emphasis in original).^[FN31]

The court does not agree that Caller's response to Ulrich's interest in purchasing an apartment in one of his buildings was "reflexive", unexpected or in any way indicative of a pre-existing corrupt agreement or understanding. Caller is a real estate developer. His goal, presumably, is to sell his apartments as quickly, easily and for as much money as he can. Upon being approached by a friend to buy an apartment, it would have been strange for Caller not to be receptive. The People argue that "CALLER did not hesitate when ULRICH sought an apartment in one of CALLER'S buildings".^[FN32] In the court's view, it would be strange if Caller did hesitate when presented with an opportunity to earn profits by selling one of his apartments, particularly to a long-time friend.

The People's assertion that Caller provided Ulrich with "personal attention" "after being named to the Adams administration" is accurate but incomplete. That again was a fundamental problem in the evidence presented to the grand jury. Ulrich had been providing such personal attention to Caller for years prior to being appointed to the Adams administration.

The People then posited that the grand jury likely determined that there was an agreement either beginning on March 19, 2022 or "before that date".^[FN33] In the court's view, however, the notion that the grand jury would have been entitled to conclude that Caller had any corrupt understanding or agreement under the bribery statutes prior to the date Ulrich first approached him about buying an apartment is false.

The People correctly point out that, even presuming the indictment was invalid for the three-month period between December 17, 2021 and March 19, 2022 (a point they don't concede), the remedy would simply be to amend the indictment to reflect the correct date range. See CPL 210.25; 200.70. The court's concern in this instance, however, is that the grand jury apparently concluded that they were entitled to determine the existence of a corrupt agreement or understanding during a three-month period without any evidence. That conclusion, in the court's view, under the circumstances here, impaired the validity of the entire indictment. Date errors in indictments doubtless arise from many issues. Some may be inadvertent, technical or trivial. That is not what happened here. Were this the only issue undermining the validity of the indictment, in the court's view, the criminal procedure law would direct the court to simply modify the indictment's time period. But that was not the only issue.

Under the minimal standards for grand jury sufficiency, the court believes the evidence that Caller provided a financial benefit to Ulrich through his lease and possible sale of an apartment was legally sufficient. In the court's view, however, that evidence clearly did not establish reasonable cause to believe Caller benefitted Ulrich. See People v. Holmes, 118 AD2d 869 (2nd Dept, 1986) (grand jury evidence may be legally sufficient even if a court concludes it does not provide reasonable cause to believe a defendant guilty of a crime) (quotation and citations omitted). The court's conclusion in that regard is relevant and discussed here because, along with the indictment's invalid time period, the court believes the lack of persuasive evidence of any benefit Caller provided Ulrich was relevant to the final point outlined here — the failure of the grand jury to get the "full story" of Ulrich and Caller's relationship.

It is not disputed that Caller provided or offered to provide Ulrich with concessions and discounts on two apartments which were below the standard or listed prices or monetary obligations apartment purchasers were ostensibly required to pay. The evidence regarding these transactions is almost entirely undisputed. But the right question in this case, and the question the grand jury evidence did not answer, was not whether Caller provided Ulrich with concessions below listed prices. It was whether an arms-length purchaser in Ulrich's position who was not working to assist Caller with zoning issues would have been given equivalent offers. In the court's view, the grand jury did not receive evidence which allowed them to make that determination. Rather, they were essentially asked to review the differences between initial listed prices and the prices Ulrich was offered and then, if those prices differed, conclude that Caller provided Ulrich a financial benefit beyond what would have been provided to an equivalent purchaser.

The People's assessment of this issue was apparently informed, in the court's view, by an inherent understanding of the market for new residential apartments in New York City which was not accurate. The fact that a real estate developer seeking to sell multiple newly constructed apartments provides a prospective purchaser with discounts or concessions below ostensible listed prices does not necessarily say anything about whether that purchaser is receiving an undue benefit. Outside specific laws or regulations which may impact prices, residential apartment sales in New York City are not governed by initial listed prices. They are governed by the market, a market which is fluid and dynamic. It is a market which routinely changes over time. It is a market which may vary based on the characteristics of one purchaser vs. another, for reasons having nothing to do with bribery. When a person buys a ride on the bus or subway, there is a set price. There are certain categorical variations in standard prices, for senior citizens, for example. But apart from such categorical differences, the price of a subway or bus fare does not depend on market forces, the MTA's financial condition, the purchaser's assets, other characteristics of the purchaser or the demand for rides by others. The set fare changes at specific points over time but apart from that is immutable.

The market for newly constructed apartments in New York City is the opposite. The initial alleged "bribe" Caller offered to Ulrich was to reduce the asking price on an apartment by a little less than 2%. There was nothing remotely unusual or suspicious about that. Apartments in New York City often sell for prices below initial listings for multiples far greater than a 2% discount, just as such apartments routinely sell for prices much higher than initial listings. Caller allowed Ulrich to initially rent the apartment and then use that rent as a downpayment, further reducing Ulrich's costs. This again was a key component of Caller's alleged bribe. But such [*11]arrangements also obviously benefit sellers. They prompt a buyer who may have trouble assembling a down payment to buy the apartment. They generate immediate income, rather than forcing a seller to wait for a downpayment which may take longer or may never come. They get the prospective buyer into the apartment — where, once there, the renter may be more likely to buy. The offer with respect to the apartment Ulrich moved into also included a time limit by which a sale would have to be made, further incentivizing a purchase. Caller asserted that this concession was perfectly consistent with accommodations he had made to other purchasers.

The transaction between Caller and Ulrich, moreover, did not concern just one apartment. Caller was selling multiple new apartments in a newly constructed building. Caller's assessment of the price each apartment would command and the incentives which were necessary to complete those sales might depend on factors like how many other apartments had sold or were in contract, what Caller's obligations to his lenders were and how much cash he needed to generate within specific time periods. The grand jury evidence indicated that the price Ulrich was offered required the consent of Caller's lender and apparently his sons. Caller's business partners were also apparently involved in all aspects of his development efforts.^[FN34] Without even a rudimentary understanding of any of these issues — an understanding the grand jury was not given — it was not possible to distinguish between a concession which reflected a bribe and one which reflected the market. Ulrich apparently did not use a real estate broker to consummate his planned purchase. If that was so, however, this might further reduce the apartment's costs, since a buyer broker's commission would then not be paid.

Benefits like Ulrich received might reflect a corrupt bargain. They might reflect concessions which, a grand jury might conclude, made no sense under prevailing market conditions. Or they might indicate nothing of the kind. The People argue that Caller's agreement to cover Ulrich's closing costs, for example, was "hardly a prudent business decision".^[FN35] But there was no basis for the grand jury to draw that conclusion. As is likely generally true with respect to real estate sales, the apartment Ulrich sought had both positive and negative selling points. The People have described it as a new "beach front" apartment. It was also across the street from a homeless shelter which had been perceived as dangerous, in a community which, like others in New York, had long confronted challenges in a location far from Manhattan.

The People assert that price Caller discussed with Ulrich for the first apartment was a "deeply discounted offer". But a 2% discount on an apartment's listed price, in the court's view, does not necessarily reflect anything of the kind. The People, in their response to the omnibus motion, compared an original listing price which had already been dropped generally by Caller [*12]prior to the apartment being offered to Ulrich (an initial $654,000 price, which had then been dropped to a listing price of $637,000) and was then offered to Ulrich for $625,000. The People argued this was a $37,000 discount, although, as the court understands the evidence, that is not correct. The discount was from the list price of $637,000 to $625,000. The offer, as outlined earlier, also included significant additional concessions. The People argue that the price drop and concessions reflected an "extraordinary discount" which "would only have been offered" if Caller "expected something in return".^[FN36] In the court's view, again, the grand jury had no basis to draw any such conclusion.

The People also argued that the offer was specific to Ulrich.^[FN37] That is true but, in the court's view, not significant. There are a myriad of considerations which might impact a real-estate sale based on the characteristics of one prospective buyer vs. another. What was never demonstrated to the grand jury, as far as the court could discern, was whether similar offers were being made to other prospective purchasers in Ulrich's position at about the same time. Caller asserts that prior counsel "provided evidence of every single sale in the building [to prosecutors], which showed that the price [offered to Ulrich] was in line with comparable apartments".^[FN38] That assertion was not documented by Caller, since it concerned submissions of a prior attorney, but the People did not refute this contention in their response to Caller's motion.

Moreover, the grand jury evidence made clear that Ulrich had a compelling motive to shut down the homeless shelter having nothing to do with any benefit Caller may have provided. The motive was that Ulrich himself, who had a young daughter who did not live full-time with him, was planning to live across the street from what he and Caller both perceived as the highly problematic shelter including residents at times who could be threatening or dangerous. According to Caller: "Ulrich voiced his concern that he did not want his daughter around panhandlers [from the shelter]".^[FN39]

The benefits Ulrich received, as noted earlier, had to be approved at least in part by the lender. As evidenced by Ulrich's question to Caller about whether his partners had approved the price for the more expensive apartment he eventually moved into, Caller's partners also apparently had a role in these decisions. Caller's sons, as noted supra, apparently had to approve the price Ulrich was offered. The lender, Caller's partners and Caller's sons, however, are not charged with bribery. Thus, the grand jury was asked to find that the bribe Caller allegedly gave Ulrich was a transaction which, from the prospective of the lender, Caller's partners and Caller's sons was a presumably appropriate business decision. More broadly, Caller did not function as an independent actor in myriad other ways. According to Caller, "[f]rom the outset Caller was working with a team of attorneys, architects, planners, and lobbyists to get the zoning [*13]changed."^[FN40] To construe the interactions between Ulrich and Caller as a bribery scheme, the grand jury had to implicitly conclude that the multiple persons working with Caller were either complicit or oblivious to his corruption. That is certainly possible. Despite the wiretapping of Caller's conversations with Ulrich and the myriad text messages recovered between them, however, there was never any indication, as far as the court could discern, that any of the multiple people connected to Caller and involved in these transactions ever perceived anything inappropriate had occurred.

Caller, in his motion, "denies that Ulrich actually received a benefit relating to the apartment, as the pricing and amenities provided were consistent with other sales in the building."^[FN41] The court does not know whether that is true or not. What the court is confident about is that the evidence before the grand jury did not provide reasonable cause to believe the contrary proposition — that Caller provided a benefit to Ulrich which was inconsistent with what a comparable purchaser would have received. It is only because the court here must construe the grand jury evidence in a light most favorable to the People that it has concluded the indictment should not be dismissed for this reason alone. In that regard, the court would highlight two issues. The first was that Ulrich and Caller repeatedly discussed Ulrich's apartment during the same conversations in which they discussed Ulrich's assistance with Caller's zoning issues, supporting the inference of an implicit quid pro quo. The second discussion which stood out to the court as perhaps evidence of a consciousness of guilt on Caller's part was the allegation that Caller and Ulrich structured the lease on the apartment Ulrich eventually moved to in order to obscure the benefit Ulrich was receiving. As outlined supra, this was done by providing Ulrich with three free months of rent effectively reducing his annual monthly rental, rather than having a reduced monthly rental for the entire lease.^[FN42] Ulrich told his girlfriend that Caller had told him the lease had to be structured that way because reducing the rent for the entire term "would look bad for you and me".^[FN43]

Here, however, although Caller and Ulrich's conversations were wiretapped, this crucial allegation, according to the People's response to the Omnibus motions, did not arise from a [*14]statement Caller made. It was from a statement Ulrich made to his girlfriend, recounting a statement Ulrich said Caller made. This was not inadmissible hearsay because it was not offered for its truth. In the court's view however, it was not reliable. It came from Ulrich (hardly the most accurate of reporters); it was not clear whether Caller's alleged statement was a quote or a paraphrase and it was not even clear, in the court's view, what "looking bad" referred to. Moreover, despite extended wiretaps on the conversations between Ulrich and Caller, in the court's view, this was the closest any statement came to evidencing any consciousness of guilt on Caller's part. It was the thinnest of reeds on which to ground an inference of corrupt intent. In a conversation with an acquaintance recounted for the grand jury, well after Ulrich became aware he was being investigated, he asserted that he had not received a "sweetheart deal" for the apartment because it was "in a less desirable part" of the Rockaways.^[FN44]

City officials work to represent and benefit their constituents including businesses. There are few public policy issues which have been deemed more important by public officials in the City of New York in recent years, moreover, than the development of affordable housing. Affordable housing in New York City is not currently being built by the government. It is built by private developers, typically through public-private partnerships which provide developers benefits or subsidies for making some or all their units affordable. In this court's view, there was nothing unusual or suspect on its face in Ulrich's efforts as a member of the City Council, a senior advisor to Mayor Adams and then the DOB Commissioner to seek to remove regulatory barriers to the development of housing. That was a stated important goal of the Adams administration. It is stated priority of the Mamdani administration. Indeed, it is hard to conceive of an issue more important to New Yorkers at the current moment than the lack of affordable housing. Building such housing, however, requires intensive interactions between public officials and private developers.

Ulrich began assisting Caller when Ulrich was a City council member. City council members have a significant and formal role in New York City land use decisions through the Uniform Land Use Review Procedure ("ULURP"). A witness before the grand jury asserted that city council members normally acted to oppose rather promote development. Other evidence indicated, however, that initial proposals to the City Planning Commission could be accepted, rejected or modified. Presuming city council members commonly act to limit development, however, does not provide evidence that an attempt to promote development, particularly in an area like Far Rockaway, would necessarily be indicative of corruption. In fact the grand jury evidence indicated the opposite. It was not only Ulrich who supported Caller's development work in Far Rockaway. It was Ulrich's successor on the City Council, an elected official not charged in these indictments, who was "all for it" and "asked what she needs to do".^[FN45] Ulrich also acted with his successor on the City Council to attempt to take actions to close the homeless [*15]shelter. Caller asserts that the local State Assemblywoman also worked with him to address issues at the shelter.^[FN46] These efforts were not simply to benefit Caller. They were perceived to be a benefit to the entire Far Rockaway community.

The grand jury also heard evidence that support by city council members for new development could be a positive thing. One city official testified: "[W]e are happy when . . . [there is support for new development by city council members] because we are in the middle of a housing crisis and it's difficult to get things through the ULURP process so when it happens, it is a positive thing from my perspective because it helps us potentially to get housing approved through the city council".^[FN47]

The grand jury evidence indicated that Mayor Adams and Caller had a relationship, that Adams supported Caller's work and that Ulrich repeatedly portrayed Caller as a friend of the Mayor when seeking assistance with Caller's projects. The motivation to assist Caller because he was a friend of the Mayor, however, would not in itself be evidence of bribery.

Regulatory barriers routinely impede the construction of housing and developers and builders often turn to public officials for help in navigating those restrictions. The grand jury heard testimony that efforts by public officials to contact city building department personnel seeking information on behalf of real estate entities were "not an uncommon particular activity", a "not unfamiliar thing to have happen" and "[n]ot something that would be out of the ordinary" In response to a leading question, the same witness also agreed that it was '[n]ot something that would happen frequently".^[FN48] When asked by a grand juror whether officials, other than Ulrich, would contact DOB in similar ways as Ulrich had contacted the agency with respect to building issues, the answer was "Sure".^[FN49] Indeed, such assistance was so routine that the grand jury learned DOB had a "community affairs and intergovernmental team" assigned to be a liaison with persons and groups concerned about DOB policies.^[FN50] A City Planning Department official, who allowed that the official had been new on the job and so had limited experience in fielding zoning requests, in response to another question from a grand juror, opined that Ulrich's efforts on behalf of Caller "did not strike me as unusual in my experience in government and politics".^[FN51]

The court also did not discern that the City Planning Department did anything inappropriate in response to Ulrich's alleged bribe receiving. Of course, for the crime of bribery and bribe receiving to be complete, such actual corruption need not occur. It is relevant in the court's view, however, that the evidence before the grand jury appeared to demonstrate that, in response to Ulrich's efforts, DCP acted appropriately, granting Caller accommodations where they believed they were proper and denying significant requests when the agency did not agree [*16]with them. The court also did not see evidence that DOB's actions had been corrupted to benefit Caller. Indeed, as outlined supra, the evidence indicated that two developments Caller sought Ulrich's assistance with, including as DOB Commissioner, never materialized.

Efforts to persuade city officials to grant zoning variances can also be corrupt and that is the allegation here. But the mere fact that Ulrich had worked for years to assist Caller [and undoubtedly many others] with zoning issues, did not evidence corruption. As Caller argues, what occurred in this case is analogous to what occurred in a case with much simpler facts, People v. Canepa, 295 AD2d 247 (1st Dept 2002). In that case the court found a bribery conviction had been properly vacated as legally insufficient after a trial. In Canepa, a defendant court clerk expedited cases for a defendant lawyer but the evidence indicated such accommodations were routinely given to other lawyers. The lawyer, however, also hired the clerk as a paralegal "at the prevailing rate". The court held that "[t]here was no evidence supporting an inference of an agreement or understanding that defendant would continue to provide the clerk with paralegal work in return for assistance in expediting cases". 295 AD2d at 248. Here, Ulrich, like the court clerk in Canepa, provided lawful assistance to Caller, in this case by attempting to remove regulatory barriers to Caller's housing development efforts. Caller then engaged in a real estate transaction with Ulrich. In the court's view, the grand jury evidence did not demonstrate that Caller provided Ulrich with concessions during that transaction beyond what an equivalent purchaser would have received. Like the clerk in Canepa, who was compensated "at the prevailing rate", there was no basis to conclude that the concessions offered by Caller to Ulrich reflected anything other than a business decision based on market conditions.

The People also apparently argue that Ulrich's other corruption allegations support the conclusion that Caller had a corrupt agreement or understanding. Ulrich, as part of his city government position, this argument goes, may well have assisted developers other than Caller with projects in the same way he assisted Caller. But since Ulrich was generally corrupt, his interactions with Caller were also likely corrupt. See People's Memorandum in Opposition to Omnibus Motion, p. 145 ("evidence of ULRICH 'helping' others is equally unavailing in light of his additional bribe receiving charges".) The fact that Ulrich may have entered into corrupt agreements or understandings with other defendants, however, does not mean his interactions with Caller were also necessarily corrupt.

Ulrich's additional alleged corruption is also apparently the primary reason Caller become a part of this investigation. The investigation initially focused on Ulrich's dealings with others. On wiretapping Ulrich, however, additional potential targets revealed themselves. One was Caller. Another became Truta. In Caller's case, in the court's view, the grand jury was asked to connect dots without having a full picture of Ulrich and Caller's relationship. They were directed to conclusions based on incorrect premises. In the case of Truta, as recounted in the related decision, an indictment was brought based on an allegation that Truta provided $550 to Ulrich — an alleged crime which would never have warranted a fraction of the resources expended during this investigation had that alleged crime occurred on its own. Ulrich then, a person who this court believes was validly indicted in the other cases, became the focus of intense law enforcement attention and a net which ensnared the arguably guilty and innocent alike.

The indictment alleges that Ulrich and Caller used "codes and cryptic language" to communicate with each other.^[FN52] That allegation was also made in the two additional indictments arising from this investigation which charged conspiracy counts. While the court saw evidence of codes and cryptic language in those other indictments, however, it did not discern evidence that Ulrich and Caller ever used "codes" in their conversations with each other. The court is not aware that Caller, during the wiretaps, ever believed his communications with Ulrich were being monitored and their activities surveilled. While "cryptic language" is a subjective characterization, the court did not see evidence of that during Ulrich and Caller's conversations with each other either.

The People point out that, upon telling Caller he would become DOB Commissioner on April 21, 2022, Ulrich asked Caller not to contact him directly but rather go through elected officials. In the court's view, however, there was nothing inculpatory in that conversation. As outlined in the other indictments, Ulrich certainly took numerous actions which created the appearance of impropriety. In this instance, however, his request to Caller seemed designed to avoid both the appearance and the reality of a conflict in their relationship. On the other hand, the evidence also indicated that Caller continued to contact Ulrich seeking Ulrich's help with Caller's development efforts even after Ulrich advised him not to.

There are also additional reasons why selling an apartment to Ulrich might have been beneficial to Caller having nothing to do with any specific actions Ulrich had taken to benefit him. Having Ulrich residing in one of Caller's developments could be beneficial for the neighborhood where Caller had significant investments since it would give Ulrich an additional personal incentive to work to improve the community. Ulrich told Caller on March 24th. 2022 that he had a friend who might want to buy an apartment in the building. According to Caller, Ulrich also brought a second prospective purchaser, Oddo, who had considered making a $1 million purchase. Having a positive business relationship with Ulrich thus might generate additional potential buyers. Ulrich and Caller were friends. Selling an apartment to a friend may have been more desirable than selling one to a person Caller didn't know. The grand jury evidence also indicated that Caller had a relationship with Mayor Adams and that Mayor Adams supported Caller's work. Some of these considerations might point in the direction of a bribery allegation if Caller had provided Ulrich with an undue benefit. Apart from the fact that a general interest in having Ulrich as a resident in one of Caller's buildings would not, in the court's view, be a specific enough consideration to support a bribery charge there is a more basic problem with such arguments. In the court's view there was not reasonable cause to believe Caller provided any improper benefit to Ulrich in their real estate transactions.

As is true with respect to the other indictments, the People's questions particularly to its own investigator, were occasionally leading, conclusory or compound, although the court does not believe that made the indictment invalid. For example, after hearing a call where Ulrich spoke to Caller about being locked out of his apartment, the People's investigator was asked: "Is this another example of Mr. Ulrich calling directly for mundane and related questions? The investigator then answered (not surprisingly): "Yes."^[FN53]

The grand jury indicted Ulrich and Caller for bribery crimes occurring over a roughly three-month period during which they heard no evidence that Caller provided, offered to provide or discussed providing any benefit to Ulrich. In the court's view, it was clear that there was also not reasonable cause to believe Caller, in fact, provided any benefit to Ulrich beyond what would have been provided to an arms-length purchaser in Ulrich's position. The first of these infirmities warranted a reformation of the indictment to reflect the appropriate time period. The clear lack of reasonable cause, in the court's view, would have to be excused because of the minimal standards applicable to grand jury evidence. But these two infirmities along with the others outlined here, despite the massive quantum of evidence the People presented to the grand jury, still made the indictment barely viable. What then pushed the question over the edge was the third important factor. The fact that Ulrich had been assisting Caller with his development efforts for years prior to any alleged benefit Caller provided to Ulrich, in the court's view, was exculpatory because it belied the notion that Caller provided a benefit to Ulrich to obtain that assistance. But the grand jury never learned about that history.

Pursuant to CPL 210.35 (5) an indictment should be dismissed, inter alia, if it fails conform to the requirements of Article 190 of the criminal procedure law "to such degree that the integrity thereof is impaired and prejudice to the defendant may result".

As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus charged with the duty not only to secure indictments but also to see that justice is done. With this potent authority, moreover, comes responsibility, including the prosecutor's duty of fair dealing. As this Court has explained, these duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion. People v. Huston, 88 NY2d 400, 406 (1996) (quotations omitted).

On the other hand, dismissal of an indictment is an "exceptional remedy" only available in "rare cases". People v. Thompson, 22 NY3d 687, 699 (2014) (quotations omitted). Prosecutors are given great latitude in making determinations to submit inculpatory but not exculpatory evidence to a grand jury. In People v. Mitchell, 82 NY2d 509 (1993), for example, the Court of Appeals in a 4-3 decision upheld an indictment where the prosecutor presented a murder defendant's inculpatory statements but omitted to present exculpatory statements she made to the police later. The defendant initially said she had stabbed her husband who had tried to beat her then later said the couple had been drunk and struggled over a knife the victim had, which then killed him. The majority reasoned that an indictment need only be based on prima facie evidence. They also held: "The exculpatory statements were not part of a single statement in which inculpatory and exculpatory thoughts were expressed". 82 NY2d at 513, citing People v. Isla 96 AD2d 789 (1st Dept, 1983).

In Isla, the court admonished the prosecutor for presenting only a portion of the sentence in which the defendant had confessed to the crime, omitting the portion where the defendant claimed the killing was in self-defense. The three dissenting judges in Mitchell found the [*18]exclusion of the exculpatory statements impaired the fairness of the presentment, concluding "there are some circumstances in which the exculpatory evidence is so essential to a complete understanding of the case that the prosecution's failure to disclose it can actually prevent the Grand Jury from functioning as an intelligent and informed decision-making body". Id., 82 NY2d at 517-518 [Titone, J. joined by Kaye, C.J. and Hancock, J. dissenting]. The grand jury in assessing whether there is reasonable cause to believe a defendant committed a crime is entitled to know "the full story". Isla, 96 AD2d at 789. A prosecutor's wide latitude in presenting grand jury evidence is not "unbounded" and prosecutors owe "a duty of fair dealing to the accused". People v. Lancaster, 69 NY2d 20, 26 (1986) (quotation omitted).

A common demarcation between exculpatory evidence which must be presented and evidence which need not be is whether the exculpatory evidence is necessary to provide a full picture of the criminal conduct prosecutors allege. Thus, it has been held that where a defendant makes an inculpatory statement which is presented to a grand jury, the prosecution is also required to present an exculpatory statement made during the same interrogation if that exculpatory statement "amplifies" the inculpatory statement and supports a justification defense. People v. Morel, 131 AD3d 855, 860 (1st Dept, 2015), lv denied 26 NY3d 1147 (2016); People v. Falcon, 204 AD2d 181(1st Dept 1994), lv denied 84 NY2d 825 (1994). "[T]he People are obligated to present exculpatory evidence of which they are aware that might materially influence the grand jury proceeding". People v. Cooper, 239 AD3d 991 2nd Dept, 2025) citing People v. Williams, 298 AD2d 535 (2nd Dept 2002), lv denied 99 NY2d 566 (quotation and additional citations omitted). See also People v. Golon, 174 AD2d 630 (2nd Dept 1991) (indictment for larceny and insurance fraud regarding a car dismissed where prosecutor presented evidence defendant did not own the car but not evidence he did own it).

The People also have no obligation to seek to uncover exculpatory evidence which might be relevant in a grand jury. "An indictment will not be dismissed provided that the prosecutor did not withhold any information from the Grand Jury which would have materially influenced its investigation". People v. Suarez, 122 AD2d 861 (2nd Dept, 1986), lv denied 68 AD2d 817. In determining whether the exclusion of exculpatory evidence warrants a dismissal of an indictment, the question is whether "such evidence could possibly cause the Grand Jury to change its findings". People v. Scott, 150 Misc 2d 297 (Sup Ct, Queens County 1991).

As Caller correctly argues, Ulrich "had been legally helping Caller for years on his projects without any benefit, payment or remuneration".^[FN54] The evidence presented to the grand jury showed that Caller provided an ostensible benefit to Ulrich closely proximate to actions by Ulrich to benefit Caller. Had the grand jury been given the complete picture of Ulrich and Caller's relationship, however, they would have been asked to draw the implausible conclusion that, after getting benefits from Ulrich for multiple years, Caller then decided to bribe Ulrich to get the same benefits. An indictment must be dismissed, pursuant to the authorities outlined supra, when the People fail to present exculpatory evidence in their possession which might materially impact the grand jury's decision. In this court's view, that is what occurred here.

Caller in his motion provided numerous examples of communications between Caller and Ulrich in which Caller attempted to get Ulrich to assist him with his development projects, [*19]beginning in September of 2020.^[FN55] These communications had three characteristics. First, they long preceded any benefit Ulrich allegedly provided to Caller. Second the grand jury never learned about them. And finally, Caller alleges (and the People in their response to the omnibus motions do not deny) that the People had this evidence but did not provide it to the grand jury. Ulrich, as noted supra, became DOB Commissioner on April 21, 2022. It might be argued that Caller decided to bribe Ulrich only when he ascended to that new position. Ulrich was appointed as Commissioner and informed Caller about that, however, a month after Caller allegedly began to bribe Ulrich. As recounted in the People's response to Caller's Omnibus motion, the grand jury heard evidence of interactions between Ulrich and Caller beginning on November 9, 2021, shortly after the mayoral election.^[FN56] The first "over act" alleged in the conspiracy was on December 17, 2021.

All the parties on this motion provided extensive, well-reasoned and carefully documented submissions. The People presented only a brief argument, however, as to why they believed evidence of Ulrich and Caller's prior relationship was not exculpatory. They argued that providing evidence of that relationship would "only strengthen the People's case".^[FN57] The argument is that, since Caller had been unable to achieve many of his objectives when Ulrich was a councilman, this provided a motive for Caller to bribe Ulrich when Ulrich became a senior advisor to the Mayor. In addition to the fact that this alleged motive, in the court's view, is based only on speculation it is belied by the evidence. Caller did not attempt to bribe Ulrich when Ulrich told him he was going to be part of the Mayor's "inner circle" and was then appointed as a senior advisor. Caller first allegedly provided a benefit to Ulrich three months later in response to a request from Ulrich. This issue is one example of how the indictment's deficiencies supported each other. The alleged benefit Caller provided to Ulrich did not support the view that Caller bribed Ulrich when Ulrich became the Mayor's Senior Advisor. But the indictment cured this analytic deficiency by charging — with no evidence — that the alleged bribe began 3 months earlier than any evidence indicated it might have.

Ulrich also sought to benefit Caller's projects both before and after he joined the administration.Nor, as far as the court could discern, did Ulrich's efforts materially change or accelerate when he sought to buy the apartment. The results Caller achieved, as far as the court could discern, also did not materially change after Ulrich joined the administration. Had the grand jury heard the full story, they would have been asked to conclude that Caller decided to bribe Ulrich to continue to receive the same assistance Ulrich had provided Caller for years without a bribe.

The second argument which could be made on this point is that, even presuming the People did omit to provide exculpatory evidence to the grand jury, under the minimal standards applicable to grand jury evidence, that omission does not warrant reversal. That is the better argument. But it is here that the other deficiencies in the evidence supporting the charges loom large. Were there persuasive evidence of bribery within the four corners of the evidence [*20]presented to the grand jury, the absence of exculpatory evidence arising from an earlier time would not warrant dismissal. But that was not the case. Here, the evidence did not indicate the two defendants had a corrupt agreement or understanding. Moreover, the grand jury obviously believed they were entitled to indict the defendants over a period in which there was no evidence of bribery. Under these circumstances, the failure to present the exculpatory evidence inherent in Ulrich and Caller's prior relationship impaired the validity of the presentment. The grand jury, had they learned of Ulrich and Caller's prior relationship, certainly might have determined not to indict the defendants under the legal standards outlined here.

Caller alleges that "the District Attorney's Office purposefully kept this information that it had in its possession from the Grand Jury. In doing so, the prosecutors violated any sense of fair dealing in the grand Jury and prevented the grand jurors from hearing evidence that would materially influence their findings."^[FN58] The court reviewed and approved the wiretaps, subpoenas and search warrants in this case and closely followed this investigation in real time over an extended period. It found the prosecutors to be well-prepared, diligent and careful. It did not detect and has not now concluded that the prosecutors acted in bad faith. The court has no doubt that the People conducted this investigation and sought these indictments to combat what they believed was significant corruption. The court's conclusion about the People's carefully considered work, in turn, is a strong argument for holding this indictment to be valid. Rather, in reviewing 5 indictments, the court found four to be lawful and legally sufficient and this one to invalid.

For all those reasons the indictment is dismissed. This constitutes and decision and order of this court.