People v. Shammas

WILLIAM E. GARNETT, J. Is the integrity of a grand jury impaired to the extent that there is a risk of prejudice to a defendant where a grand jury warden, in violation of CPL 190.25 (6), instructs the grand jury on its authority to reconsider its initial decision to dismiss? On April 12, 2004, the defendant was arraigned on a felony complaint which charged assault in the second degree et al. On April 26, 2004, the District Attorney began the presentation of evidence to a grand jury by eliciting the testimony of various witnesses. The defendant had given notice pursuant to CPL 190.50 (5) (a) to testify before the grand jury. The defendant and defense witnesses offered by the defense testified on May 4, 2004. Thereafter, on the same day, the prosecutor charged the grand jury on the law of assault in the second degree and various misdemeanors including assault in the third degree. The charge also contained the law of justification. The grand jury deliberated and reported a no true bill on all counts. The finding of dismissal was not filed with the court. On May 5, 2004, the foreperson of the grand jury approached a grand jury warden and indicated that the grand jury, which had voted the dismissal of the charges, "wanted to change their vote." (Vitale affidavit ¶ 3.) The warden told the foreperson that the vote could be changed but advised the foreperson that "certain procedures . . . needed to be done." (Id.) Without consulting with the court or any assistant district attorney, the warden entered the grand jury room and addressed the grand jury. The warden inquired as to whether the sentiments expressed by the foreperson reflected the entire jury's view of the case. Apparently convinced that the grand jury wished to reconsider its May 4th vote, the warden "instructed . .. the Grand Jury that they needed 12 or more in order to re-vote the case." (Id. ¶ 4.) The warden left the room and the grand jury deliberated. Thereafter, the grand jury apparently informed the warden that it had voted to reconsider the case. The warden's colloquy with and instructions to the grand jury were not recorded. In addition, the putative vote of the grand grand jury. The statute identifies legal instructions as critical components of the grand jury procedure which should be scrutinized to insure their propriety and correctness. Simply, in this case, a layperson had instructed the grand jury on a legal matter without a record. This court is in no position to assess the impact of the warden's comments to the grand jury. It is clear that the warden did not read any script in his legal advice and that he extemporized comments concerning his knowledge of the law regarding the grand jury's authority and procedure. Although the evidence presented to the grand jury was legally sufficient to support the charges, it is no panacea to every impairment of the grand jury process that legally sufficient evidence was presented to support the charges. As the Court of Appeals opined in People v Calbud, Inc. (supra), such an approach would countenance improper grand jury practice. When the process has been violated by an improper action, the court must examine the particular facts of the case to determine whether "the ultimate decision reached by the Grand Jury" was potentially prejudiced. (People v Huston, 88 NY2d at 409.) The possibility and risk of prejudice to the defendant are palpable in this case. Prejudice is obvious in that the impairment of the grand jury occurred after the grand jury had voted to dismiss all of the charges. Moreover, the Assistant's marshaling of the evidence contained inaccuracies and omissions which were critical to the grand jury's decision particularly in regard to the defense of justification. The District Attorney recognized that this was a close case by the inclusion of the justification charge. The unsolicited marshaling constitutes an independent basis for the court to conclude that the integrity of the grand jury was impaired and that prejudice may have occurred. Thus, the record establishes the risk that the grand jury's ultimate decision in this case was prejudiced. In light of the foregoing facts and legal analysis, the motion to dismiss the prosecutor's information pursuant to CPL 170.50 (1) (b) is granted.^[3] [1] The District Attorney has conceded that the count of attempted assault in the third degree should be dismissed. [2] The second paragraph has no application in this case as it authorizes the presence of the warden during the testimony of an incarcerated witness. [3] The People have not requested this court's permission to re-present the case to another grand jury. (CPL 170.50 [3].)