| People v Revette |
| 2008 NY Slip Op 01452 [48 AD3d 886] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Holly A.Revette, Appellant. |
—[*1] James P. Maxwell, District Attorney, Syracuse, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered February 20, 2007, upon a verdict convicting defendant of the crimes of arson in thethird degree (two counts) and burglary in the third degree (two counts).
A small fire in a house being constructed by Larry Mitchell for Arthur Kiggins wasdiscovered and quickly extinguished when Mitchell returned to the work site for equipment earlyin the evening of December 7, 2005. A second fire at Kiggins' premises, occurring on December30, 2005, totally destroyed the house. Following an investigation, defendant—Kiggins'former girlfriend who was involved in an ongoing child custody dispute with Kiggins and livedacross the road from the site of the fires—was arrested. She was indicted for arson in thethird degree and burglary in the third degree for each of the two fires. A jury found her guilty ofall four crimes and she was sentenced to an aggregate prison term of 3
Defendant argues that, since one of the grand jurors was the spouse of one of the three deputysheriffs who investigated the fire and testified before the grand jury, her motion to dismiss theindictment should have been granted.[FN*] She seeks dismissal under CPL 210.35 (5), which is [*2]the"catchall provision" for dismissal (People v Williams, 73 NY2d 84, 90 [1989]) and,while dismissal under that provision remains an "exceptional remedy," such relief is merited in"instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice theultimate decision reached by the [g]rand [j]ury" (People v Huston, 88 NY2d 400, 409[1996]; see People v Mujahid, 45AD3d 1184, 1185 [2007]). Unlike the statutory provisions that apply to petit jurors(see CPL 270.20 [1] [c]), upon which defendant places reliance, the provisions governinga grand jury do not provide for a challenge to a grand juror based on his or her relationship to awitness (see CPL 190.20 [2] [b]; Judiciary Law § 510). Moreover, remote familialrelationships or speculative assertions of possible bias are insufficient to require dismissal of anindictment (see People v Wormuth, 35 AD2d 609, 609 [1970]; People v Briggs,50 Misc 2d 1062, 1065 [1966]).
Nevertheless, a close relationship between a grand juror and a witness raises the real risk ofpotential prejudice (see State v Penkaty, 708 NW2d 185, 198 [Minn 2006]; People vCipolla, 163 Misc 2d 144, 145 [1994]; State v Murphy, 110 NJ 20, 27, 538 A2d1235, 1238 [1988]; see also CPL 190.20 [2] [b] [a grand juror should not serve if"incapable of performing his (or her) duties because of bias or prejudice"]). Armed withknowledge of such a relationship, the prosecutor, who wields "substantial control over the[g]rand [j]ury" and has a "duty of fair dealing" (People v Huston, 88 NY2d at 406[internal quotation marks and citations omitted]), should ensure fairness and, if there is any doubtwith regard thereto, bring the potential bias to the attention of the court or otherwise excuse thegrand juror (see People v La Duca, 172 AD2d 1054, 1055 [1991]; People vCipolla, 163 Misc 2d at 148). "The likelihood of prejudice turns on the particular facts ofeach case" (People v Huston, 88 NY2d at 409) and a defendant "need not demonstrateactual prejudice" (People v Sayavong, 83 NY2d 702, 709 [1994]).
Here, when the prosecutor was informed that a grand juror was the spouse of a deputy sheriffwho investigated the fires and would be testifying before the grand jury, the following dialogueensued:
"THE PROSECUTOR: Your husband is one of those guys? I think they mentionedthat to me. So you don't think you could be fair and impartial? Your [sic] not justlistening to him.
"GRAND JUROR: I can stay.
"THE PROSECUTOR: Why don't we do it this way, if you don't mind, you canstay. Before you deliberate and vote, we'll evaluate. Just because you know somebody, you don'thave to necessarily excuse yourself, if you can be fair and impartial, okay. If that's okay with you.And, if you don't feel you can, then we'll excuse you."
This exchange does not reveal a clear and direct response from the grand juror specificallyrelating an ability to remain fair despite the fact that her spouse, a deputy sheriff, would be [*3]testifying about his investigation of defendant. In fact, the grandjuror's response appears ambiguous. Moreover, the hearing transcript does not reveal that theprosecutor followed through on his suggestion that the issue would be revisited before the grandjury deliberated and voted. Further, the actual number of grand jurors voting to indict defendantis not recorded, leaving to speculation the potential significance of the single vote of this grandjuror. In light of the close familial relationship, the significance of the testimony of the deputysheriff appearing before the grand jury that included his wife, the absence of an unequivocalstatement from the grand juror of an ability to remain impartial, the prosecutor's failure to followthe procedure he suggested to ensure impartiality, and the lack of a record of the vote, we arepersuaded that the particular facts of this proceeding require that the indictment be dismissed
The remaining issues, to the extent not rendered academic, are unavailing.
Mercure, J.P., Peters, Spain and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and indictment dismissed, with leave to the People to resubmit the chargesto another grand jury.
Footnote *: Although defendant wasconvicted by a jury following a trial, this issue nevertheless survives for appellate review in NewYork (see People v Huston, 88 NY2d 400, 411 [1996]; People v Wilkins, 68NY2d 269, 277 n 7 [1986]; but cf. United States v Mechanik, 475 US 66 [1986]).