People v Reid

Supreme Court, Kings County

Decided on March 24, 2026

Ind. No. 77022-24

Carolina Holderness, J.

Defendant moves for an order granting reinspection of the Grand Jury minutes and dismissal of the indictment.

The People oppose.

For the reasons stated herein, defendant's motion to dismiss is DENIED.

I. Relevant Facts and Procedural History

This case commenced on November 8, 2024, when the defendant was arraigned on a felony complaint in Kings County Criminal Court charging her with Assault in the First Degree (PL § 120.10[2]) and other related charges for an incident alleged to have occurred approximately one year earlier, on November 24, 2023. The felony complaint alleged that the defendant poured flammable liquid on the complainant and then flicked a lit cigarette at her, lighting her on fire and causing second-degree burns to the complainant's face, chest, wrist, forearm, and shoulder.

Between November 21, 2024, and November 26, 2024, the People presented the case to the Grand Jury. The evidence before the Grand Jury included the testimony of the complainant as well as photographic exhibits depicting the injuries to the complainant's face, hands, and shoulder, and certified medical records from Kings County Hospital detailing the complainant's [*2]treatment and diagnosis. The medical records indicated that the complainant told treatment providers that her injuries were caused by a cooking accident involving hot oil.

In substance, the complainant testified that she and the defendant are married and that they have known one another since 2022. The complainant testified that on November 24, 2023, the defendant and complainant argued because the defendant accused the complainant of infidelity. When the complainant attempted to leave the room, the defendant kicked the complainant in the chest, causing the complainant to fall backwards onto the couch. The complainant then testified as follows:

Q: What happened after you attempted to get back up off the couch?

A: She went and got the bottle of accelerant that she had created from underneath the kitchen sink. And as I tried to get around her, she poured it down my face, and down my chest.

Q: What type of bottle is this liquid stored in?

A: She had put it in the Poland [S]pring, clear water bottle.

Q: What color was the liquid, itself?

A: Clear.

Q: How did the liquid smell?

A: It smelled like rubbing alcohol.

Q: And please restate what it is that the defendant did with this liquid?

A: She poured it down my face, it went down my chest, and she was smoking at the time, and she flicked a cigarette at me, and set me on fire.

Q: What did you feel after the cigarette was flicked at you?

A: That I was burning, and I was in pain. My eyes were closed, it was very, very hot. I dropped to the floor to put the fire out, and then ran into the bathroom to pour water on myself.

Grand Jury Transcript dated November 21, 2024 at 6-7.

The complainant further testified that the defendant's brother then took her to Kings County Hospital, where she received medical treatment for second-degree burns to her face, left wrist, left forearm, left shoulder, and chest. She was later transferred to Cornell Hospital for additional burn treatment.

After hearing the evidence, the Grand Jury voted to indict the defendant for Assault in the First Degree (PL § 120.10[2]) and its attempt; Assault in the First Degree (PL § 120.10[1]) and its attempt; Assault in the Second Degree (PL § 120.05[2]); Assault in the Third Degree (PL § 120.00[1]); Assault in the Third Degree (PL § 120.00[2]); Menacing in the Second Degree (PL § 120.14[1]); and Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2]). While several of the counts charged involve a dangerous instrument, neither the legal instructions given to the Grand Jury nor the indictment itself name a specific dangerous instrument.

On January 6, 2025, the defendant was arraigned on this indictment and entered a plea of not guilty. On February 20, 2025, the counsel for the defendant filed an omnibus motion requesting, inter alia, a bill of particulars and inspection of the Grand Jury minutes. The Court issued its decision finding that the evidence presented to the Grand Jury was legally sufficient to establish the offenses charged by the indictment on March 5, 2025.

On May 29, 2025, defense counsel provided the People with an expert report prepared by [*3]Fire Investigator John Lentini, who concluded that the complainant's description of events was not "reliable data," and that the complainant's "description of a lit cigarette acting as an ignition source for isopropyl alcohol vapors [was] extremely unlikely." (see Defense Exhibit E). In this report, Fire Investigator Lentini concluded that the temperature of a cigarette coal "is not sufficiently high to bring the flammable vapors to their ignition temperature." (Id.). The defense asserts that this contradicts the complainant's testimony to the Grand Jury regarding the instrumentality of ignition. (Id.)

After receiving the defense's expert report, the People retained a different expert, a FDNY fire investigator, to conduct an analysis. The FDNY fire investigator confirmed that a lit cigarette coal is unlikely to have a temperature high enough to ignite the vapors of a flammable liquid. On September 8, 2025, the People informed defense counsel that their expert agreed with the findings of the defense's expert.

On October 1, 2025, the parties appeared in Part SCDV2 for a pre-trial conference. At that conference, the People announced that, despite the scientific evidence which had come to light, they still intended to proceed with the instant prosecution. The defense asserted that the People were materially and impermissibly changing the theory of their case. In response, the People argued that the People's theory of the case — that the defendant set the complainant on fire — remains the same, and that they do not expect the evidence at trial to deviate from the complainant's narrative, except that the People will argue that an open flame must have been introduced after the defendant flicked the cigarette onto the complainant, causing the liquid and vapors to ignite.

On October 23, 2025, the defense served and filed this motion for an order granting reinspection of the Grand Jury minutes and dismissal of the indictment, arguing that (1) the new information provided by the two expert witnesses establishes that the gravamen of the evidence before the Grand Jury was false, and (2) the People's new theory — that a lighter was used to ignite the complainant — cannot be presented to a petit jury at trial under the current indictment, because no such evidence was presented to the Grand Jury. By papers dated December 3, 2025, the People oppose, asserting that (1) the evidence presented to the Grand Jury was not false, and (2) that the People's theory has not changed.

II. Legal Standards for Motions to Reinspect Grand Jury Minutes

A. Timeliness of Defendant's Motion for Reinspection of the Grand Jury Minutes

The People argue that the defendant's motion is untimely, and, thus, should not be considered by this Court. The People assert that the defendant's motion serves as a motion to reargue the Court's decision as to the legal sufficiency of the Grand Jury minutes, the timing of which is governed by CPLR § 2221(d)(3). Per CPLR § 2221(d)(3), a motion to reargue shall be made to the judge who rendered the decision and order within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. The notice of entry requirement is not applicable in the context of criminal proceedings due to procedural differences between civil and criminal matters. (People v Morisseau, 67 Misc 3d 1201[A] at *1 [City Ct Mount Vernon 2020]). This Court issued its decision as to the legal sufficiency of the Grand Jury minutes on March 5, 2025. The defendant filed the instant motion on October 23, 2025, 232 days later.

The defendant's motion is not a motion to reargue, but rather, a motion for reinspection of the Grand Jury minutes upon the emergence of subsequent evidence that did not exist at the time [*4]of the Court's original determination. As such, the timing restrictions of CPLR § 2221(d)(3) do not apply. There is no applicable statutory authority that governs the timing of motions for reinspection. However, the Court notes that the defendant filed this motion 45 days after the People confirmed that their expert agreed with the scientific findings of the defense's expert on September 8, 2025, and fewer than 30 days after the People confirmed on the record that they intended to proceed in the prosecution of this case despite the experts' findings.

Pursuant to CPL § 255.20(3), the Court "in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of [a] motion on the merits." Having found that the defendant has demonstrated good cause, and in the interest of justice, this Court will consider the defendant's motion on its merits.

B. Applicable Standards for a Motion to Reinspect

While the Criminal Procedure Law clearly delineates the applicable procedure and standards for inspection of the grand jury minutes, there is no statutory authority for reinspection of the grand jury minutes. (People v Guin, 243 AD2d 649, 650 [2d Dept 1997]). Generally, a court's original determination as to the legal sufficiency of the grand jury minutes is considered "law of the case." (see People v Johnson, 131 AD2d 696, 517 NYS2d 31 (2d Dept 1987); People v Finley, 104 AD2d 450, 479 NYS2d 63, adhered to on rearg. 107 AD2d 709, 484 NYS2d 63; People v Hartigan, 90 AD2d 506, 454 NYS2d 890). The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as judges and courts of co-ordinate jurisdiction are concerned. (Martin v City of Cohoes, 37 NY2d 162, 371 NYS2d 687, 332 NE2d 867). While adherence to the "law of the case doctrine" is not mandated in all cases, only extraordinary circumstances justify departing from it. Thus, a moving party may only succeed upon a motion for reinspection of the grand jury minutes upon a showing of extraordinary circumstances, such as subsequent evidence affecting the prior determination or a change of law. (see Lipp v Port Authority of New York and New Jersey, 57 AD3d 953, 954, 871 NYS.2d 307, 309 [2d Dept 2008]).

Upon a motion to inspect the grand jury minutes, the reviewing Court must evaluate whether the evidence presented before the grand jury was legally sufficient to establish the offenses charged. Legally sufficient evidence is "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10[1]; People v Mills, 1 NY3d 269, 274 [2003]; People v Bello, 92 NY2d 523, 525-26 [1998]; People v Arcila, 152 AD3d 783, 784 [2d Dept 2017]. "In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (Bello, 92 NY2d at 526; Arcila, 152 AD3d at 784).

Here, defense counsel asserts that subsequent evidence has come to light affecting the Court's prior determination as to sufficiency of the Grand Jury minutes: the expert report finding that the cigarette coal could not have been the ignition source. This report did not exist when the Grand Jury minutes were originally inspected and, thus, could not have been considered by the Court in its prior determination.FN1 On this basis, this Court finds that the defense has made a [*5]proper showing of extraordinary circumstances to warrant reinspection of the Grand Jury minutes. Accordingly, the defendant's motion for reinspection of the Grand Jury minutes is hereby granted.

III. Defendant's Motion to Dismiss

The defendant asserts that, upon reinspection of the Grand Jury minutes, the instant indictment must be dismissed with leave to re-present because (1) the new information provided by the two expert witnesses establishes that the evidence before the Grand Jury was false, and (2) the People's "new" theory affirmatively disproves the theory regarding the instrumentality for the complainant's injuries originally submitted to the Grand Jury, creating a legal impediment to the prosecution and requiring dismissal under CPL § 210.20(1)(h) .

A. Falsity of the Evidence before the Grand Jury under People v Pelchat 62 NY2d 97 (1984)

The defense first argues that because the People concede that a lit cigarette could not have caused the fire that resulted in the complainant's injuries, the Grand Jury evidence was patently false and dismissal of the indictment is required pursuant to People v Pelchat, 62 NY2d 97, 106 (1984). The defendant asserts that here, as in Pelchat, the only evidence before the Grand Jury regarding the defendant's alleged conduct—the complainant's testimony—was later proven to be false, and so, the People are obligated to seek a new indictment (Defense Motion at 8-9 ¶ 16). The People respond that the expert reports that were received after the Grand Jury proceedings "do not mean that the evidence presented to the grand jury was false." (People's Response at 9). Rather, the People assert, the testimony shows that the complainant and defendant were alone in the room, that the complainant closed her eyes after the cigarette was thrown, and that the complainant was severely burned, so that even if the cigarette was not the ignition source, the Grand Jury was presented with legally sufficient evidence to establish the charged crimes.

In Pelchat, the Court of Appeals reversed the defendant's conviction for criminal possession of marihuana in the first degree and dismissed the indictment because the only evidence before the Grand Jury connecting him with the crime was the testimony of a police officer who subsequently told the prosecutor that he was unable to identify defendant as a participant in the crime. (Pelchat, 62 NY2d at 99). The defendant in Pelchat argued that because the prosecutor knew of this mistake before the defendant pled guilty, the prosecutor should have resubmitted the matter and corrected the proceedings and that the failure to do so required that the conviction be reversed and the indictment dismissed. (Id.) The Court of Appeals agreed, holding that "the courts have inherent power to dismiss an indictment...when there was a total lack of evidence before the Grand Jury, when the quality of the evidence is challenged because the witness's testimony was perjured." (Id. at 105).

Unless an indictment is based entirely on false testimony, as in Pelchat, exculpatory evidence that comes to light following a grand jury vote does not, in and of itself, render the indictment defective or the grand jury testimony legally insufficient. "There is no statute or [*6]controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal." (People v Goetz, 68 NY2d 96, 116 [1986]). Information that contradicts a grand jury witness's testimony and is discovered after the presentation does not require dismissal of an indictment where the allegedly perjurious testimony is not the only evidence to support the elements of the crimes charged. (Id.)

This applies even when a grand jury witness's testimony is later proven to have been factually inaccurate. For instance, in People v Dushain, the First Department denied the defendant's motion to dismiss a second-degree murder count despite the fact that a witness in the grand jury had testified that a second witness was present at the murder, and it was later established that the second person was incarcerated and could not have witnessed the murder. (People v Dushain, 244 AD3d 627, 628 [1st Dept 2025]). In distinguishing the circumstances from those in Pelchat, the Dushain Court held that while the kidnapping victim had testified falsely before the grand jury that another witness had seen the murder, it was "not clear whether the kidnapping victim's testimony was intentionally false or honestly mistaken as to the other witness's presence." (Id.) Under those circumstances, "it cannot be said that the only grand jury evidence connecting defendant with the murder was testimony later proven to be false or incorrect." (Id.) Accordingly, as the indictment was not based entirely on false testimony and there was no impairment of the integrity of the grand jury proceeding warranting dismissal, the defendant was not entitled to dismissal of the murder count despite the clear error in the evidence presented to the grand jury. (see also People v Green, 178 AD3d 603 [1st Dept. 2019]).

The Court finds that here, as in Goetz, the evidence before the Grand Jury was sufficient to "clearly support the elements of the crimes charged, and provide an ample basis for concluding that a trial of this matter is needed." (Goetz 68 NY2d at 117). Unlike in Pelchat, where the information learned subsequent to the grand jury presentation essentially disproved the defendant's participation in the charged crime, the information learned subsequent to the Grand Jury presentation here does not, in and of itself, disprove the defendant's participation in the charged crime or render the complainant's testimony false. And unlike in Dushain, where even the witness's demonstrably false grand jury testimony did not require dismissal under the Pelchat standard, here the new evidence — the expert findings — do not render the Grand Jury testimony demonstrably false. Rather, the complainant's testimony leaves open the possibility that an open flame could have been introduced after the cigarette had been thrown, particularly as she testified that her eyes were closed after the cigarette was thrown. (see Grand Jury Transcript dated November 21, 2024 at 6-7). Nor, as discussed further below, did the People instruct the Grand Jury to consider the cigarette as the specific dangerous instrument for any of the counts involving a dangerous instrument, and the indictment itself does not plead a specific dangerous instrument. Assuming the impossibility of the cigarette as the ignition source, the evidence before the Grand Jury remains legally sufficient, and there was no defect in the proceedings requiring dismissal. Whether the complainant's testimony was intentionally false in any respect, and whether the People can sustain their burden in light of the experts' conclusions, are issues to be decided at trial.FN2

[*7] B. Legal Impediment to Conviction and the Permissibility of the People's Theory Under People v Grega, 72 NY2d 489 (1988)

The defense next argues that the indictment must be dismissed because the anticipated alleged variance between the theory presented to the Grand Jury and the evidence expected to be introduced at trial creates a "jurisdictional or legal impediment to conviction of the defendant for the offense charged." (CPL § 210.20[1][h] relying on People v Grega [Roberts] 72 NY2d 489 [1988]). The defense contends that the proof at trial will constitute an "impermissible shift" from the Grand Jury proof by moving from an emphasis on a cigarette as the ignition source to a "lighter or flame" (Defense Motion at 2 ¶ 3, 11 ¶ 23).

The People do not address the applicability of CPL § 210.20(1)(h), instead responding only to defendant's arguments regarding the alleged variance. The People assert that their trial theory is not new and is less specific than the defense claims; they argue that that their core position remains that "the defendant intentionally set the complainant on fire" and that the defendant has adequate notice of the People's theory sufficient to prepare a defense (People's Response at 10).

i. CPL § 210.20(1)(h)

CPL § 210.20(1)(h) provides that a court may dismiss an indictment where "[t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged." "Unlike a dismissal under some other subsections of CPL § 210.20, such as CPL § 210.20(1)(c), dismissal of an indictment pursuant to subparagraph 210.20(1)(h) precludes re-presentation of the matter to another grand jury, and it bars 'any further prosecution of such ... charges ... in any criminal court.' CPL § 210.20(4)" (People v Morrissey, 79 Misc 3d 1083, 1090 [2023]). Given this limitation, a "legal impediment" justifying dismissal under this subdivision has been found in rare circumstances, such as where the People preceded to trial on an indictment where they had re-presented the same charges to a second grand jury who declined to vote an indictment for them (People v Franco, 96 NY2d 493 [1995]), or where a laboratory report showed that the alleged controlled substance was not, in fact, cocaine, and there was no viable case to be brought to trial (People v Swamp, 84 NY2d 725 [1995]). Developments in a case that create difficulty for the prosecution at trial or limit the evidence to be introduced at trial do not constitute a legal impediment to conviction requiring dismissal under CPL § 210.20(1)(h). (see People v Gordon, 88 NY2d 92, 97 [1996] [finding that the suppression of identification evidence "simply diminishes the quantum of proof against defendant but does not negate any elements of the charged crimes," nor does it "render it impossible for the People to obtain a conviction against defendant"]). Even misconduct and "deplorable tactics" by the prosecutor in the grand jury do not warrant dismissal under this subdivision, particularly in a serious case involving allegations of serious injury. (People v Grafton, 115 AD2d 952 [4th Dept 1985)]).

Neither party cites, nor has this Court found, any case where an anticipated variance between the evidence before the Grand Jury and the evidence that is expected to be introduced at trial constituted a legal impediment justifying dismissal under CPL § 210.20(1)(h).

ii. Variance

The issue of variance generally arises at or after trial and not by motion to dismiss at this stage in the proceedings. Our State Constitution requires that "[n]o person shall be held to answer for a capital or otherwise infamous crime. . . unless on indictment of a grand jury." (NY Const., Art I, § 6; see also CPL § 210.05). The Constitution further requires that the defendant "shall be informed of the nature and cause of the accusation." (Id.; see also CPL § 200.50). The indictment, first, "provid[es] the defendant with fair notice of the accusations against him, so that he will be able to prepare a defense," second, "prevents the prosecutor from usurping the powers of the Grand Jury by ensuring that the crime for which the defendant is tried is the same crime for which he was indicted, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence," and, third, "prevents later retrials for the same offense in contravention of the constitutional prohibition against double jeopardy." (People v Grega [Roberts], 72 NY2d 489, 495-96 [internal citations omitted] [1988]).

The Court of Appeals upheld the conviction in Grega because the proof presented by the People at trial did not vary from the allegations of the indictment, which alleged the use of physical force. Because the witness also testified at trial regarding the defendant's use of physical force, the "defendant was not deprived of fair notice of what the People would attempt to prove." (Id. at 496). In the companion case, Roberts, however, the Court held that where "the People chose to include the cause of death in the indictment and to repeat that allegation in their answer to discovery," they were "not then free to present proof at trial that virtually ruled out that theory as the cause of death and substituted another one." (Id. at 498). "The prejudice to defendant resulting form that variance was manifest" because at trial, the defendant was unprepared to defend an allegation of deliberate strangulation. (Id.)

As in Roberts, where the indictment pled the cause of death as a strike to the neck, the prosecution may, by its legal charge to the Grand Jury or by the language of the indictment itself, limit its theory of liability: "Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories." (People v Vasquez, 161 AD3d 902, 903 [2d Dept 2018] [citations omitted]; see also People v Powell, 153 AD2d 54, 56 [4th Dept 1989] [where the indictment alleged that the defendant caused injury "by striking [the complainant] on the head with a lamp," the prosecutor could not, at the conclusion of the trial evidence, amend the indictment to state that the injury was caused by a baseball bat rather than a lamp]; People v Greene, 75 NY2d 875, 876 [1990] [reversing the defendant's conviction where the indictment alleged that the defendant caused the death of the victim "by shooting him" and the trial court instructed the jury they could return a guilty verdict if they found the defendant had caused the victim's death "by means other than a gun."]; People v Gachelin, 237 AD2d 300 [2d Dept 1997] [holding that where the "theory of the indictment . . . was that the defendant attacked two persons with an ax" and the evidence at trial was consistent with this theory, the trial court erred by instructing the jury that it need not find that the dangerous instrumentality used was an ax]).

However, where the People have not limited their theory by the indictment itself or by a bill of particulars, "it is well settled that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged." (People v Horton, 181 AD3d 986, 992 [3d Dept 2020] [citations omitted]). Where allegations require the People to prove the use of a dangerous instrument, "the particular identity of the dangerous instrument is not an element of these offenses." (People v Kaid, 43 AD3d 1077, 1082-83 [2d Dept 2007]). With regard to issues that are not material elements, the People are free to make [*8]amendments that do "not change the theory of the case or cause any prejudice." (Horton, 181 AD3d at 992 [finding that the People properly filed an amended bill of particulars between the defendant's first and second trials because the change being made — which related to how the defendant unlawfully entered the dwelling — was extraneous to the material elements of the charged burglary]).

Here, the People did not allege, either in the indictment itself or in their legal instructions to the Grand Jury, that the cigarette was the dangerous instrument, nor have the People provided a bill of particulars. They have, in various filings, including in their response to the defendant's omnibus motion, alleged that the cigarette caused the liquid to ignite, but they have also, by later filings, changed that theory. Because they did not specifically charge the Grand Jury to consider the cigarette as the dangerous instrument and did not plead it in the indictment, they are free to make this change in theory as to the ignition source, and it does not constitute a variance requiring dismissal of the indictment. As in Horton, the change is extraneous to the material elements of the charged crimes. This change does not usurp the powers of the Grand Jury, and it has been made well in advance of trial, providing the defendant with sufficient notice to prepare a defense.

Accordingly, the defendant's motion to dismiss the indictment pursuant to CPL § 210.20(1)(h) is denied.

IV. Conclusion

Wherefore, for the foregoing reasons, defendant's motion for reinspection of the Grand Jury minutes GRANTED, and upon reinspection, the Court finds the evidence presented to be legally sufficient, so defendant's motion to dismiss is DENIED, and defendant's motion to dismiss the indictment pursuant to CPL § 210.20(1)(h) is DENIED.

The foregoing constitutes the decision and order of the Court.

Dated: March 24, 2026

Hon. Carolina Holderness, A.J.S.C.