| People v Pacheco |
| 2008 NY Slip Op 09277 [56 AD3d 381] |
| November 25, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v RudyPacheco, Respondent. |
—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Jennifer Eisenberg ofcounsel), and Goldstein & Weinstein, Bronx (Barry Weinstein of counsel), forrespondent.
Order, Supreme Court, New York County (Micki A. Scherer, J.), entered on or about May10, 2006, which dismissed the indictment with leave to re-present, reversed, the indictmentreinstated, and the matter remanded for further proceedings.
Defendant and three others were charged with burglarizing a truck. The police had beenfollowing a minivan in which the four men were riding, when it pulled up near thetruck.[FN*]Two police officers testified to the grand jury that they witnessed defendant standing on thesidewalk and looking up and down the block while two of the other men removed a bag from therear of the truck. The fourth man remained in the driver's seat. Another officer testified that hesaw defendant walking back to the minivan with the other two men, one of whom was carryingthe bag. A fourth officer testified that he recovered a box cutter from defendant's pocket during asearch incident to his arrest.
After the grand jury returned indictments against the two men who actually removed the bagfrom the truck, the prosecutor informed them that defendant wished to testify. Defendant testifiedthat he was inside the minivan when two of the men saw the truck and instructed the driver topull over. Defendant told them to "leave it alone" but the two men ignored him and got out of theminivan. After they failed to immediately return he got out of the minivan to see what they weredoing. When he saw them remove a bag from the truck he told them to "leave that alone" andwent back to the minivan, where he was arrested.
The prosecutor asked the grand jury at that point to indict defendant; however, the grand juryasked if it could delay its decision until after it heard from the man who was driving the minivan,since that "would certainly potentially—be quite relevant to our decision on defendant."[*2]The prosecution assented to that request. The driver testifiedthat defendant and another one of the men were in the minivan when they approached him andthe fourth man. He was asked to drive the minivan, and, at some point, the three other men allexited the minivan at the same time, and, upon their return, were arrested. The motion courtcharacterized certain questions asked of the driver by the grand jury as focusing oninconsistencies between his own testimony and that of defendant. This led the court to believethat the grand jury intended to rely on the driver's testimony as a factor in their deliberationsregarding the defendant.
The grand jury indicted defendant on the charges of burglary in the third degree, grandlarceny in the fourth degree and 10 counts of possession of burglar's tools. It declined to indictthe driver. The court dismissed the indictment on the ground that the prosecutor should haveinstructed the jury that the driver's testimony could only be considered if there was corroboratingevidence.
We agree that the prosecution should have instructed the grand jury that the driver'stestimony was legally sufficient to support an indictment only if corroborated. The concurrence isincorrect that Criminal Procedure Law § 60.22, which requires accomplice testimony to becorroborated, does not apply to this case. It applies, albeit indirectly, pursuant to CPL 190.65 (1),which provides that: "Subject to the rules prescribing the kinds of offenses which may be chargedin an indictment, a grand jury may indict a person for an offense when (a) the evidence before itis legally sufficient to establish that such person committed such offense provided, however,such evidence is not legally sufficient when corroboration that would be required, as a matter oflaw, to sustain a conviction for such offense is absent, and (b) competent and admissibleevidence before it provides reasonable cause to believe that such person committed suchoffense." (Emphasis added.)
Prior to the testimony of the driver, the grand jury was apparently unsatisfied that thetestimony of the four police officers provided a legally sufficient basis for indicting defendant.Indeed, the motion court, which reviewed the grand jury minutes and was in a far better positionto assess the degree to which the grand jury relied on the driver's testimony, found that the grandjury considered the testimony a significant factor in whether it should indict. At the time thegrand jury deliberated concerning defendant and the driver, the driver was an "accomplice" asthat term is defined by CPL 60.22 (2) (a); that is, "a witness in a criminal action who, accordingto evidence adduced in such action, may reasonably be considered to have participated in. . . [t]he offense charged." As such, his testimony, if used to convict, would havehad to be corroborated. Moreover, that the driver may have been testifying in his own behalf, asopposed to for the People, is irrelevant (see People v Diaz, 19 NY2d 547, 549 [1967]).
CPL 190.25 (6) provides, in pertinent part, that "[w]here necessary or appropriate, the courtor the district attorney, or both, must instruct the grand jury concerning the law with respect to itsduties or any matter before it." Here, because the circumstances were such that an indictmentbased on the driver's uncorroborated testimony would have been in contravention of CPL 190.65(1), we find that it was both necessary and appropriate for the prosecution to instruct the grandjury that it could not rely on the driver's testimony to indict defendant unless it also found there tobe evidence which corroborated the testimony. Indeed, if, under the concurrence's [*3]theory, it was not necessary and appropriate to so instruct the grandjury in this case, we can think of hardly any case in which it would be necessary and appropriateto instruct a grand jury. This would render CPL 190.25 (6) purposeless.
Nevertheless, we reverse the order appealed, because we find that the failure to instruct didnot rise to the level of impairing the integrity of the grand jury (see People v Darby, 75NY2d 449, 455 [1990]; cf. People vSchwartz, 21 AD3d 304, 307 [2005], lv denied 6 NY3d 845 [2006]).Defendant's own testimony and the testimony of the four police officers provided sufficientevidence tending to connect defendant to the crimes with which he was charged (see People v Johnson, 32 AD3d761 [2006], lv denied 7 NY3d 902 [2006]). Concur—Mazzarelli, J.P.,Moskowitz and Acosta, JJ.
Catterson, J., concurs in a separate memorandum as follows: Because I believe that themajority's dicta to the effect that the accomplice liability instruction must be given in the grandjury is a radical departure from this Court's precedent, I must concur separately for the reasons setout below. I believe that the majority's dicta articulates for the first time the dubious propositionthat instructions intended for petit juries must be given to grand juries on the possible pain ofdismissal of the indictment.
I would reinstate the indictment because the standard for grand jury instruction is far lessstringent than the standard for instructing petit juries, and because the provision for anaccomplice corroboration instruction on which the defendant relies is one that only applies, butfor the very rare case, to a petit jury and not a grand jury.
The defendant was arrested, along with three codefendants (David Alache, Leopaldo Moralesand Luis Nunez), in the commission of a burglary of a parked truck. The undisputed facts are asfollows: On November 29, 2005, Alache, Morales, Nunez and the defendant parked a minivannear a white box truck. Alache and Nunez got out of the minivan. The defendant got out either atthe same time or a short time later. Morales, the driver, stayed in the minivan. Alache removed abag from the box truck, joined the defendant, who had been looking up and down the block, andthe three returned to the minivan. The four men were arrested. The same grand jury deliberatedthe indictments of all four codefendants. Following the testimony of the four police officers onFebruary 14, 2006, the grand jury voted to indict David Alache and Luis Nunez on burglary andother charges. Alache and Nunez later pleaded guilty.
The instant dispute arose out of the defendant's subsequent indictment for third-degreeburglary, fourth-degree larceny and 10 counts of possession of burglar's tools. On February 16,2006, the grand jury was informed that defendant would testify on his own behalf. The defendanttestified that he told Nunez to "leave that alone" (referring to the white box truck) as they weredriving past the white truck, and then went to see what the codefendants were doing. After thedefendant testified, the prosecutor requested the grand jury to vote on whether to indictdefendant. This exchange ensued between the Assistant District Attorney (ADA) and members ofthe grand jury after they were told that codefendant Morales would also testify:
"grand juror: Since the testimony of defendant Morales would certainlypotentially—be quite relevant to our decision on defendant Pacheco can we hold [*4]off on considering the charges until we heard from that witness?
"[ada]: That's a good question. Since I am not certain of the answer, I am going to step outand I will get right back to you.
(ADA . . . AND GRAND JURY REPORTER LEAVE GRAND JURYCHAMBER AND RETURN SHORTLY THEREAFTER)
"[ada]: Sir, the answer to your question is, as with any other case, you can decide to vote oryou can decide that you don't wish to vote at this time and you wish to hear additional evidence,so it's in your hands.
"grand juror: Would we take a vote on whether we want to take a vote? Is that how it's done?
"[ada]: Yes.
(ADA . . . AND GRAND JURY REPORTER LEAVE GRAND JURYCHAMBER AND RETURN SHORTLY THEREAFTER)
"foreperson: We would like to abstain from voting today and vote tomorrow after hearingfrom Morales."
Morales testified on February 17, 2006. The record shows that the testimony of the defendantdiverged from the testimony of Morales in two key areas. The first is that while the defendanttestified that he exited the van shortly after Nunez and Alache, Morales testified that all threeexited at the same time. The second area concerned Morales' interactions with the other men inthe van. At the completion of testimony, the grand jury returned a no true bill as to Morales, butindicted the defendant.
On March 2, 2006, the defendant moved to dismiss the indictment under CPL 210.20 (1) (c)and 210.35 on the ground that the grand jury's integrity was impaired as a result of theprosecution's failure to give adequate instructions to the jury. The record does not show that hespecified what instruction should have been given.
On April 19, 2006, the court dismissed two of the charges against defendant for possessionof burglar's tools, found that the integrity of the jury was not impaired by questions to thedefendant regarding his criminal history, and raised the issue, sua sponte, of the People's failureto give instructions regarding codefendant testimony. The court stated, "[Not giving] anyinstruction as to whether or not [the grand jury] could consider the testimony of a co-defendant. . . in this case . . . [is] a problem." The court ultimately granteddefendant's motion to dismiss the indictment.
The court concluded that the grand jury's questions and the deferral of its vote made it clearthat the grand jury intended to use Morales' testimony in its deliberations regarding defendant'sindictment. "[I]t was incumbent upon the People, at a minimum, to provide a limiting instructionwith respect to the use of Morales' testimony as against defendant Pacheco."
On appeal, the People argue that the court erred in dismissing defendant's indictment on[*5]the basis that a limiting instruction is required in order for agrand jury to consider the testimony of a codefendant. The People argue that they were notrequired to give an instruction because Morales testified on his own behalf; not for the purpose ofinculpating defendant. Further, the People argue that the testimony of four police officersadequately established a sufficient basis for an indictment of defendant without reference toanything Morales said.
The defendant asserts that the court properly held that the grand jury's integrity was impairedwhen it considered Morales' testimony without a limiting instruction. Specifically, the defendantnow argues—for the first time—that the People erred in failing to give theaccomplice instruction pursuant to CPL 60.22 (1). That section provides that a "defendant maynot be convicted of any offense upon the testimony of an accomplice unsupported bycorroborative evidence tending to connect the defendant with the commission of such offense."
In my opinion, the court and the majority in dicta both erred in requiring a limitinginstruction on codefendant Morales' testimony. Nor does the defendant improve his position bynow relying on CPL 60.22, a provision that applies to instructing trial juries. It iswell-established that the standard for dismissing an indictment is a "very high hurdle ofimpairment of the integrity of the Grand Jury process, plus prejudice." (People v Darby,75 NY2d 449, 455 [1990].) An indictment can only be dismissed when a defect in the grand juryproceeding is so egregious that "the integrity thereof is impaired and prejudice to the defendantmay result." (CPL 210.35 [5]; see also People v Morales, 183 AD2d 570, 572 [1st Dept1992], lv denied 80 NY2d 896 [1992].) In my view there was no such egregiousimpairment here.
In my view it was clear error for the court to rule that an accomplice corroborationinstruction must be provided to the grand jury for codefendant testimony. The Peoplecorrectly assert that the practice of a grand jury considering codefendant testimony is souniversally accepted and uncontroversial that there does not appear to be any appellate decisiondirectly addressing it. The grand jury has the right to call as a witness anyone believed "topossess relevant information or knowledge." (CPL 190.50 [2], [3].) Indeed, the People areentirely correct that the principle is axiomatic.
In my view, CPL 60.22 would be erroneously applied since the provision applies to theinstruction of trial juries, not grand juries. (See CPL 60.22 [a defendant may not beconvicted on the basis of uncorroborated accomplice testimony].) Thus, while anaccomplice corroboration instruction is mandated for a jury trial, it is not required in a grand juryproceeding.
This is entirely consistent with well-established criminal jurisprudence, viz., standardsapplied to grand jury instructions are less stringent than those applied to instructions to a trialjury. In People v Calbud, Inc. (49 NY2d 389 [1980]), the Court of Appeals made plainthat the prosecution only needs to provide the grand jury with enough information to enable it"intelligently to decide whether a crime has been committed and to determine whether thereexists legally sufficient evidence to establish the material elements of the crime." (Id. at394-395.) In Calbud, the Court held that "it would be unsound to measure the adequacyof the legal instructions given to the Grand Jury by the same standards that are utilized inassessing a trial court's instructions to a petit jury. Indeed, the difference in the extent and qualityof the legal instructions that must be given to the two bodies is reflected in the CriminalProcedure Law, which, on the one hand, directs the court or District Attorney to give legalinstruction to the Grand Jury only '[w]here necessary or appropriate' (CPL 190.25, subd 6), but,on the other hand, requires a Judge presiding over a trial before a petit jury to state in detail 'thefundamental legal principles applicable to criminal cases in general' as well as 'the material legalprinciples applicable to the particular case' and 'the application of the law to the facts' (CPL300.10, subd 2) . . . [W]e hold that a Grand Jury need not be instructed with thesame degree of precision that is required when a petit jury is instructed on the law." (Id.at 394; see also People v Valles, 62 NY2d 36 [1984] [prosecutor's failure to givemitigating defense instructions did not render grand jury proceeding defective]; People vGoetz, 68 NY2d 96 [1986] [prosecutor's erroneous charge on the defense of justification didnot prejudice defendant so as to render proceeding defective]; People v Darby, 75 NY2dat 455 [lack of evidentiary instruction to grand jury did not meet the "unquestionably high prong"of impairment of integrity].)
New York's accomplice corroboration rule is an unusual one. "Although many States, and theFederal courts, permit a conviction to rest solely on the uncorroborated testimony of anaccomplice, our Legislature requires that accomplice testimony be corroborated by evidencetending to connect the defendant with the commission of the crime." (People v Steinberg,79 NY2d 673, 683 [1992] [citations and internal quotation marks omitted].) As is evident, this"persistently unique" rule (People v Breland, 83 NY2d 286, 293 [1994]) reflects alegislative judgment that a defendant's guilt beyond a reasonable doubt cannot be establishedreliably absent some evidence that satisfies the less than exacting requirements of the rule.(See People v Besser, 96 NY2d 136, 143 [2001] [accomplice corroboration rule requires"some basis for the jury to conclude the accomplice testimony is credible"].) Today, without anysupport for its position, the majority in dicta expands this "persistently unique" rule by extendingit to grand jury proceedings, even though a defendant's guilt or innocence is emphatically not atissue and even though the standard for returning an indictment is far lower than the standard forfinding a defendant guilty.
The majority's citation to CPL 190.65 (1) does not alter this conclusion. That section merelystands for the proposition that a defendant may not be indicted for an offense which requirescorroboration without such evidence being presented to the grand jury. To transmogrify thissection into a requirement that the People charge accomplice liability flies in the face ofCalbud and its progeny. "When the District Attorney's instructions to the Grand Jury areso incomplete or misleading as to substantially undermine this essential function, it may fairly besaid that the integrity of that body has been impaired . . . where, as here, the DistrictAttorney omits information which would be essential for the petit jury's determination of guiltbut which is not essential to the Grand Jury's less exacting responsibility of determining whethera prima facie case exists, it is inappropriate to dismiss the indictments on the ground specified inCPL 210.35 (subd 5)." (Calbud, 49 NY2d at 396.) The majority fails to demonstrate thatthe accomplice liability charge to a petit jury is necessary to a prima facie case.
Finally, I find no merit in the defendant's contention that pursuant to CPL 190.30, the [*6]provisions of CPL article 60 are in this case applicable to grand juryproceedings. CPL 190.30 (1) states that they are applicable "where appropriate." In my view, thiswas not a case where it was appropriate to instruct the grand jury. The defendant urges the courtto apply the standard of trial jury instruction cited in People v Leon (121 AD2d 1, 6 [1stDept 1986], lv denied 69 NY2d 830 [1987]) where the Court held that harmful errorresulted because a jury was not instructed on accomplice testimony. The defendant asserts that,similarly, "the grand jury must be properly instructed in the use of [accomplice] testimony or theintegrity of the proceedings will have been impaired." In my opinion, the defendant misappliesLeon. In fact, the Court in Leon concluded that the jury must be instructed when"the undisputed evidence establishes that a witness is an accomplice." (Id.) Further, theCourt held that "when the case against the defendant rests substantially on the testimony of awitness who is an accomplice as a matter of law, or who may be one as a matter of fact, it isbest that the court offer to charge the accomplice-corroboration rule if not requested by thedefendant." (Id. [emphasis added].) This is hardly the mandatory "requirement" foraccomplice instruction that defendant seeks to apply. The Leon Court goes on to explainthat where there is a question of proof regarding a purported accomplice's complicity, thequestion should be left to the jury. (Id.)
That is exactly what happened in this case. Not only did the grand jury decide that Moraleswas not an accomplice and return a no true bill, but, unlike the circumstances in Leonwhere the defendant's conviction for second-degree murder rested almost entirely upon thewitness's testimony, here there was ample testimony beyond that of Morales. There is noindication that the grand jury relied solely on Morales' testimony to indict the defendant.
For all the foregoing reasons, I find that the integrity of the grand jury proceedings was notimpaired to an extent that mandates dismissal of the indictment.
Footnote *: Because of the secrecy attendantto grand jury minutes, the facts are taken from a summary provided by the motion court in thedecision appealed. Defendant's previous motion to this Court to unseal the grand jury minuteswas denied (2008 NY Slip Op 61439[U] [2008]).