People v. Demas: Passing “Superseding Indictment” References, Limited Juror–Witness Familiarity, and Minor Inaccuracies Do Not, Without More, Impair Grand Jury Integrity Under CPL 210.35(5)

Decision: October 30, 2025 | Court: Appellate Division, Third Department | Citation: 2025 NY Slip Op 05991 | Docket Nos.: 113265, CR-23-0448

Introduction

In People v. Demas, the Third Department revisits the demanding standards governing dismissal of indictments for alleged defects in grand jury proceedings under CPL 210.35(5). The appeal arises from a narcotics prosecution built on three controlled buys of cocaine recorded on audio and video and corroborated by investigators’ testimony. After pleading guilty to one count of criminal sale of a controlled substance in the second degree and waiving his right to appeal, the defendant sought dismissal of the superseding indictment and later tried—by a CPL 440.10 motion—to vacate the judgment on the ground that prosecutorial misconduct impaired grand jury integrity.

The defendant identified three categories of alleged misconduct: (1) the prosecutor’s opening reference to the presentment as a “superseding” indictment; (2) failure to discharge or more fully voir dire grand jurors who acknowledged knowing one of the witnesses; and (3) eliciting allegedly false testimony from an investigator that the confidential informant (CI) had no contact with anyone other than the defendant, despite video showing a brief interaction with a passerby soliciting money. He also appealed from Supreme Court’s order summarily denying his CPL 440.10 motion while a direct appeal was pending.

The Third Department affirmed both the judgment and the order. While assuming—but not deciding—that the defendant’s grand jury challenges were jurisdictional or constitutional in nature and thus survived the guilty plea and appeal waiver, the court held that none of the asserted errors rose to the “very precise and very high” threshold for dismissing an indictment. The court also upheld the summary denial of the CPL 440.10 motion because the issues were reviewable on direct appeal and no extra-record facts were proffered.

Summary of the Opinion

Grand jury integrity: Dismissal under CPL 210.35(5) requires an impairment of the grand jury’s integrity and a potential for prejudice, typically shown by a pervasive and willful pattern of misconduct. Isolated errors—especially where strong admissible evidence supports the charges—do not suffice.
“Superseding indictment” reference: A single, passing reference to the presentment as a “superseding indictment,” unaccompanied by elaboration and not prompting juror questions, did not prejudice the defendant or impair the proceeding.
Juror–witness acquaintance: Although the prosecutor should have probed more into three grand jurors’ relationships with a witness, their unequivocal assurances of impartiality, coupled with extensive and objective video evidence, eliminated any articulable likelihood of prejudice.
Alleged false testimony: The investigator’s inaccurate statement that the CI had no other contact did not reflect intentional elicitation of false evidence; any inaccuracy concerned credibility on a collateral point and did not undermine the sufficiency of the evidence, given consistent investigator accounts and videos depicting the buys.
CPL 440.10: Summary denial was proper because direct appellate relief was available and the defendant did not demonstrate extra-record evidence; CPL 440.10(2)(b) mandates denial under such circumstances.
Result: The conviction and the order denying CPL 440.10 relief were affirmed.

Analysis

Precedents Cited and Their Influence

CPL 210.35(5): The statute permits dismissal of an indictment where the grand jury proceeding “fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result.” Demas turns centrally on this provision.
People v. Thompson, 22 NY3d 687 (2014): The Court of Appeals emphasized that dismissal is reserved for pervasive, typically willful, prosecutorial misconduct that threatens the grand jury’s core function. Demas quotes Thompson’s formulation that the standard is “very precise and very high,” framing the lens through which the defendant’s claims are evaluated.
People v. Malloy, 166 AD3d 1302 (3d Dept 2018), affd 33 NY3d 1078 (2019): Malloy reflects the Third Department’s (and the Court of Appeals’) restraint in invalidating indictments absent demonstrable prejudice or systemic taint. Demas relies on Malloy to underscore that robust evidentiary showings (such as video corroboration) diminish claims of prejudice from procedural missteps.
People v. Jenne, 224 AD3d 953 (3d Dept 2024), lv denied 42 NY3d 927 (2024): Jenne characterizes dismissal as a “drastic, exceptional remedy” and focuses the prejudice inquiry on how errors could have affected the grand jury’s ultimate decision. Demas uses Jenne in finding the inaccuracy at issue did not impair integrity.
People v. Henriquez, 173 AD3d 1268 (3d Dept 2019): Henriquez addresses how the “likelihood of prejudice” depends on the weight and nature of admissible proof and the degree of prosecutorial influence. Demas borrows this framework to assess the juror–witness familiarity and the strength of the video evidence.
People v. Coppins, 173 AD3d 1459 (3d Dept 2019), lv denied 34 NY3d 929 (2019): Coppins supports Demas’s conclusion that a passing or non-prejudicial reference during presentment—here, the label “superseding indictment”—does not, without more, compromise integrity or cause prejudice.
People v. West, 166 AD3d 1080 (3d Dept 2018), lv denied 32 NY3d 1129 (2018); People v. Coleman, 155 AD3d 1097 (3d Dept 2017), lv denied 30 NY3d 1114 (2018): These decisions caution that not all inaccuracies or even falsehoods require dismissal, especially absent evidence of intentional elicitation or material prejudice. Demas relies on West and Coleman to reject the claim that the People knowingly elicited false testimony.
People v. Hansen, 290 AD2d 47 (3d Dept 2002), affd 99 NY2d 339 (2003): Hansen stands for the proposition that certain inaccuracies bear on witness credibility—a collateral matter—rather than on the core questions of legal sufficiency and reasonable cause. Demas applies this logic to the investigator’s imprecise “no other contact” statement in light of the objective video record.
Preservation despite plea and appeal waiver: People v. Greene, 171 AD3d 1407 (3d Dept 2019); People v. Hafer, 223 AD3d 1123 (3d Dept 2024); People v. Manragh, 32 NY3d 1101 (2018); People v. Hansen, 95 NY2d 227 (2000); People v. Sheppard, 221 AD3d 1513 (4th Dept 2023), lv denied 41 NY3d 985 (2024): This cluster of authorities recognizes that some jurisdictional or constitutional defects in grand jury proceedings implicating integrity can survive a guilty plea and appeal waiver. Demas assumes, without deciding, that the claims fit that category and resolves them on the merits.
CPL 440.10(2)(b): The mandatory denial provision when sufficient facts appear on the record to permit adequate appellate review. People v. Griffin, 115 AD2d 902 (3d Dept 1985), lv denied 67 NY2d 884 (1986), and Coleman are invoked to confirm that record-based claims belong on direct appeal; absent extra-record proof, 440.10 relief is unavailable.

Legal Reasoning

1) The “Superseding Indictment” Reference

The prosecutor began by stating that the People were presenting a “three-count superseding indictment” and identified the charges. The defense argued that invoking “superseding” impermissibly hinted that prior grand jury proceedings had already acted against the defendant, potentially biasing the panel. The court, however, found the reference “passing,” unaccompanied by additional context, and devoid of any juror reaction or inquiry. Under Coppins and the general CPL 210.35(5) framework, this sort of fleeting remark—without elaboration, emphasis, or implication of prior guilt—did not impair integrity or prejudice the defendant. The grand jurors were not steered toward impermissible inferences about prior adjudications.

2) Grand Jurors Who Knew a Witness

Three grand jurors acknowledged familiarity with one of the investigator witnesses. The prosecutor elicited unequivocal assurances from each that they could be fair and impartial, but did not probe the precise nature of their relationships. The Third Department explicitly noted that the prosecutor “should have questioned” further, underscoring best practices. Still, the court held the omission non-prejudicial given (a) the jurors’ clear commitments to impartiality, and (b) the “salient evidence” consisted largely of video footage of the controlled buys, which reduced reliance on subjective credibility assessments. In this posture, the court perceived no “articulable likelihood of, or potential for, prejudice,” relying on Henriquez and Malloy to calibrate the prejudice inquiry to the evidentiary strength and the limited risk posed by minimal juror–witness familiarity.

3) Allegedly False Testimony About the CI’s Contacts

The defense asserted that the prosecution intentionally elicited false testimony when an investigator stated the CI had no contact with anyone other than the defendant during the buys. The record showed a brief exchange between the CI and a passerby soliciting money. The Third Department drew several conclusions:

Intentionality: There was no evidence that the People intentionally elicited false testimony or acted in bad faith. West and Coleman guide the analysis: absent proof of deliberate deception or material taint, inaccuracies need not vitiate the proceedings.
Materiality and context: The prosecutor instructed the grand jury that it could vote to watch the entirety of each video—a significant procedural safeguard against selective presentation. This instruction, paired with the existence of full video coverage, mitigated any potential skewing.
Collateral credibility vs. core sufficiency: Under Hansen (2002/2003), an inaccuracy that bears on a witness’s credibility on a collateral point does not necessarily implicate legal sufficiency or reasonable cause. Here, the brief encounter—characterized in a footnote as a perfunctory exchange with a panhandler—did not contradict the core narrative of the controlled buys and was overshadowed by objective audio/video corroboration and consistent investigator accounts.

Consequently, any inaccuracy fell far short of the “pervasive and willful” misconduct needed to impair grand jury integrity, particularly where the admissible proof was strong and multilayered.

4) The High Bar for Dismissal Under CPL 210.35(5)

Invoking Thompson’s “very precise and very high” standard, the court reaffirmed that dismissal is a “drastic, exceptional” remedy reserved for cases where prosecutorial wrongdoing or error has a demonstrable capacity to skew the grand jury’s decision-making. The court emphasized:

Isolated missteps do not warrant dismissal.
Prejudice must be assessed in light of the strength of admissible proof and the degree of prosecutorial influence or bias.
Objective evidence (such as video) dilutes claims that minor errors altered the outcome.

Under this rubric, none of the defendant’s allegations approached the required showing, especially given the clarity of the video evidence and the lack of any pattern of willful misconduct.

5) The CPL 440.10 Ruling

Supreme Court’s summary denial of the CPL 440.10 motion was affirmed. Because a direct appeal was available and pending—and because the defendant did not identify extra-record facts material to his claims—CPL 440.10(2)(b) mandated denial. The decision reiterates a common but crucial boundary: record-based claims belong on direct appeal; 440.10 is not a vehicle for relitigating issues fully reviewable on the appellate record.

Impact and Practical Significance

Doctrinal Clarifications

Labels matter less than prejudice: A mere reference to a “superseding indictment,” without any elaboration or juror engagement, does not establish prejudice or impair integrity.
Juror–witness acquaintance: An unequivocal assurance of impartiality may suffice where objective evidence predominates, though prosecutors are admonished to conduct a more probing voir dire about relationships when they surface.
Inaccuracies vs. integrity: Minor or collateral inaccuracies in grand jury testimony, particularly where full video corroboration exists and there is no proof of intentional elicitation, will not generally invalidate an indictment. The line between credibility issues and integrity impairment remains carefully policed.
Procedural channeling of claims: Record-based grand jury claims should be pressed on direct appeal; 440.10 relief requires extra-record proof or issues beyond the appellate record.

Guidance for Prosecutors

Avoid unnecessary characterizations in openings. If the term “superseding” is used, keep it neutral and brief; do not imply prior adverse findings or guilt.
When jurors acknowledge familiarity with witnesses, conduct a more detailed voir dire about the nature and extent of relationships. While Demas finds no prejudice here, the opinion’s admonition signals that better practice is expected.
Where video exists, proactively advise grand jurors of their authority to view full recordings. This transparency protects the integrity of the process and insulates against claims of selective presentation.
Scrub testimony for avoidable inaccuracies, especially on points that could appear exculpatory or cast doubt on procedures (e.g., CI’s contacts). If an inaccuracy emerges, correct it promptly or ensure the record (e.g., video access) places jurors in a position to evaluate it.

Guidance for Defense Counsel

Focus on materiality and pattern: To obtain dismissal under CPL 210.35(5), document willfulness, pervasiveness, and concrete prejudice. Isolated errors—especially where video corroboration exists—are unlikely to suffice.
Build extra-record facts for CPL 440.10: If direct appeal is pending or available, assemble affidavits or other materials outside the appellate record. Without extra-record proof, summary denial is likely.
Consider the optics of video evidence: Objective recordings significantly blunt claims that testimonial inaccuracies skewed the grand jury’s decision.

For Trial Courts

Demas reaffirms the restraint required when evaluating grand jury impairment claims. Courts should weigh the strength of admissible proof and the nature of any prosecutorial missteps to determine whether the integrity of the process—not merely credibility—was compromised.
The opinion provides a template for addressing juror–witness relationships: secure unequivocal assurances of impartiality and assess whether objective evidence reduces the risk of bias. Nonetheless, encourage fuller voir dire to avoid future disputes.

Complex Concepts Simplified

Grand jury “integrity” under CPL 210.35(5): Integrity is impaired when the proceeding deviates so far from statutory requirements or fair-dealing norms that it undermines the grand jury’s function of determining whether there is legally sufficient evidence and reasonable cause to accuse. It is not triggered by every error; it concentrates on serious, prejudice-bearing deviations.
“Drastic, exceptional remedy”: Dismissal of an indictment is reserved for rare situations with pervasive or willful misconduct—not routine evidentiary or procedural missteps.
Pervasive vs. isolated misconduct: “Pervasive” means a pattern suggesting bias or intentional skewing across the presentment. “Isolated” mistakes, or even inaccuracies, typically do not invalidate a true bill when strong proof supports it.
Collateral credibility vs. core sufficiency: Credibility issues concern how believable a witness is; core sufficiency asks whether the admissible proof establishes the elements and reasonable cause. An inaccuracy about a peripheral fact affects the former, not necessarily the latter.
Jurisdictional/constitutional claims post-plea: Although a guilty plea and appeal waiver generally end appellate review, certain claims that strike at the grand jury’s integrity may still be reviewed. Demas assumes this but decides the case on the merits.
CPL 440.10(2)(b): A post-judgment collateral attack must be denied when the issues can be reviewed on direct appeal based on the existing record. Extra-record evidence is typically necessary to invoke 440.10 meaningfully.

Conclusion

People v. Demas reinforces the high threshold for setting aside indictments due to alleged defects in grand jury proceedings. The Third Department held that a fleeting reference to a “superseding indictment,” limited juror familiarity with a witness (where impartiality is sworn and objective video predominates), and an investigator’s minor inaccuracy about the CI’s contacts—absent evidence of willful deception—do not collectively or individually impair grand jury integrity under CPL 210.35(5). The court’s approach, grounded in Thompson, Malloy, Henriquez, and Jenne, underscores that dismissal is an extraordinary remedy triggered by pervasive and prejudicial misconduct, not by isolated lapses amid strong evidence.

On the procedural front, Demas reiterates the proper channeling of claims: record-based challenges belong on direct appeal; CPL 440.10 relief requires extra-record facts and is unavailable when appellate remedies remain. For prosecutors, the opinion offers practical guidance on avoiding avoidable pitfalls—minimizing suggestive labels, probing juror–witness relationships more fully, and ensuring grand jurors have access to complete recordings. For defense counsel, Demas is a reminder to marshal specific, material, and systemic proof of prejudice when attacking grand jury integrity and to reserve 440.10 for matters outside the record.

Ultimately, Demas does not rewrite the law; it refines its application to common presentment scenarios in narcotics cases, clarifying that isolated imperfections will not topple an indictment secured by robust, objective evidence and conducted without demonstrable bad faith.