| People v Gordon |
| 2012 NY Slip Op 09099 [101 AD3d 1473] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin E.Gordon, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 21, 2011, upon a verdict convicting defendant of the crimes of robbery in the firstdegree and attempted assault in the second degree.
On February 16, 2010 at approximately 6:00 a.m., a man wearing a mask and brandishing aknife entered a convenience store located in the City of Albany and demanded that theclerk—Mohammed Hafeez Habib—open the register and give him money. Theperpetrator, who was wearing a long black and blue jacket with a North Face logo, took themoney, jabbed Habib in the stomach with the knife and fled the store. Based on evidencedeveloped by the police during their investigation, defendant was arrested and later charged byindictment with robbery in the first degree and attempted assault in the second degree. Hesubsequently filed a motion seeking Wade and Sandoval hearings, as well as anorder dismissing the indictment alleging, among other things, that he was deprived of dueprocess during the grand jury proceedings. County Court denied the motion to dismiss theindictment and, following a Wade hearing, suppressed evidence from one witnessidentifying defendant as the perpetrator because the People failed to provide proper notice(see CPL 710.30), but denied the motion as to another witness whose identification ofdefendant was obtained by the police through the use of a photographic array. A jury trial wasconducted, after which defendant was convicted as charged and sentenced, as a persistent violentfelony offender, to concurrent prison terms of 25 years to life and 2 to 4 years for the robbery andattempted assault convictions, respectively. Defendant [*2]nowappeals.
For the reasons that follow, we agree with defendant that the presentation before the grandjury was so fundamentally flawed that reversal of defendant's conviction is required and that theindictment be dismissed with leave to re-present to another grand jury. Obviously, we recognizethat defects in a grand jury presentation are rarely grounds for reversal, especially where there hasbeen a trial on the merits that resulted in defendant's conviction. However, such action iswarranted "where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudicethe ultimate decision reached by the [g]rand [j]ury" (People v Huston, 88 NY2d 400, 409[1996]; see People v Revette, 48AD3d 886, 886-887 [2008]; Peoplev Samuels, 12 AD3d 695, 697 [2004]). Here, there can be no doubt that the errorscommitted before the grand jury had a significant and decisive impact on its resolution of the keyfactual issue raised during this presentation—defendant's identification as the perpetratorof this robbery.
We begin by noting that before the grand jury, Habib testified that the perpetrator waswearing a mask and he could not make an identification because he did not "remember hisface."[FN1]He was then asked, "at some point did [you] learn what his name was," and Habib answered,"somebody say his name is Kevin Gordon." No curative instruction was given regarding thistestimony, which was rank hearsay and obviously inadmissible. Moreover, Habib was allowed totestify on four separate occasions before the grand jury that he had been told that the perpetrator'sname was "Kevin Gordon." The importance of this testimony and the impact that it had on thegrand jury is made manifest by the following exchange which took place between Habib and agrand juror:
"Grand Juror: Did you see his face before he put the mask on?
"Mr. Habib: No.
"Grand Juror: So how did you know who he was?
"Mr. Habib: I remember his name. His name, somebody tell me his name is Kevin Gordon.
"Grand Juror: Somebody told you his name?
"Mr. Habib: Yes, somebody told me his name was Kevin Gordon.
"Grand Juror: But you didn't see his face?
"Mr. Habib: No.
"Grand Juror: They were not together?
"Mr. Habib: No. One guy scare, me, Kevin Gordon."
The magnitude of these errors was compounded when Ahad Shafiq, another store employee,testified before the grand jury that "Habib, he told me it was the same guy that came last nightand they usually sell stolen stuff, so I know the guy from over there."[FN2]Here, for the first time, a curative instruction was given to the grand jury that such testimony washearsay and [*3]could not be considered as evidence ofdefendant's identification as the perpetrator. However, a subsequent witness, Detective MichaelKelly, was allowed to testify that Shafiq, while viewing a video of the robbery, identifieddefendant as the perpetrator and that both Habib and Shafiq identified Tony Mitchell as theindividual who entered the store just prior to the perpetrator and had gone into the restroomshortly before this crime was committed. More importantly, Kelly testified that Mitchell told himthat defendant was the masked perpetrator who committed the robbery.[FN3]While the grand jury was again given a limiting instruction regarding this testimony, it was alsotold that it could "consider it for the fact the name of a suspect was provided to other parties whoidentified Kevin Gordon without his name as the person who committed this robbery." Such aninstruction, on its face, was confusing and contradictory and, in our view, did little to minimizethe prejudice to defendant from the admission of this testimony.
Defendant's identification was the principal issue raised by this presentation before the grandjury. It is inconceivable on this record that this evidence, all of which was inadmissible, did nothave a prejudicial impact on the grand jury in terms of its resolution of this issue and its decisionto charge defendant with this robbery and attempted assault. Absent such evidence, the proofbefore the grand jury as to defendant's guilt was by no means overwhelming (compare People v Arbas, 85 AD3d1320, 1321 [2011], lv denied 17 NY3d 813 [2011]; People v Miles, 76 AD3d 645, 645[2010]). As a result, the integrity of the grand jury proceedings was so impaired by the admissionof this hearsay that reversal of the underlying conviction is required with leave to re-present thematter to another grand jury.
Given the other issues raised on this appeal, and the fact that defendant may well faceanother indictment charging him with the commission of this robbery and attempted assault, wemust address his contention that the jury's verdict was not supported by legally sufficientevidence and is against the weight of the credible evidence introduced at trial. In that regard,Habib testified at trial that moments before the robbery, an individual entered the store wearing ablack jacket and asked to use the restroom.[FN4]Shortly thereafter, another man—subsequently identified as defendant—entered thepremises wearing a mask over his face and a long black and blue jacket bearing a North Facelogo. This individual threatened Habib with a knife, took money from the cash register and fledthe premises after jabbing Habib in the stomach with the knife, causing a minor injury. At thatpoint, the other individual left the scene. A surveillance camera in the store captured the incident,but because the perpetrator was wearing a mask, Habib could not make an identification.However, Shafiq, an employee who worked at the store the previous evening, testified that thetwo men depicted in the surveillance video had been together in the store on prior occasions and,in fact, had been on the premises the prior evening. He said that the man seen in the video goingto the restroom had, the night before, been wearing a North Face jacket identical to that worn bythe perpetrator of the robbery, and identified defendant as the perpetrator, even though theperpetrator was masked and his face was not visible.
This evidence identifying defendant as the perpetrator of the robbery was corroborated by thetestimony of Michael Chase, an acquaintance of defendant who lived in a nearby apartment, whotestified that defendant was at his apartment that morning shortly before the [*4]robbery.[FN5]He indicated that prior to leaving the apartment that morning, defendant was wearing a mask anda long dark coat and said he was going to rob a store. When defendant returned to the apartment ashort time later, he allegedly told Chase that "he got the money, that he hurt the guy in the store."A surveillance camera at the apartment complex confirmed that defendant was on the premisesthat morning. While Chase's credibility was vigorously challenged on cross-examination andsegments of his testimony were undoubtedly questionable, his testimony as corroborated by otherevidence introduced at trial was not, in our view, incredible as a matter of law (see People v Blond, 96 AD3d1149, 1152 [2012], lv denied 19 NY3d 1101 [2012]; People v Rice, 90 AD3d 1237,1238 [2011], lv denied 18 NY3d 961 [2012]; People v Davis, 83 AD3d 1210, 1211 [2011], lv denied 17NY3d 794 [2011]; People v Toland,2 AD3d 1053, 1055 [2003], lv denied 2 NY3d 808 [2004]). Moreover, viewing theevidence in the light most favorable to the People (see People v Perez, 93 AD3d 1032, 1035 [2012], lv denied19 NY3d 1000 [2012]), and giving the People the benefit of the rational inferences that can bedrawn from it, we find that legally sufficient evidence was presented that defendant was theperpetrator (see People v Burnell,89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]; People v Elwood, 80 AD3d 988,989-990 [2011], lv denied 16 NY3d 858 [2011]). Further, the jury's verdict was notagainst the weight of the credible evidence introduced at trial (see People v Romero, 7 NY3d633, 644 [2006]).
Based on the foregoing, we need not address the other claims that defendant has raisedduring the course of this appeal.
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment is reversed,on the law, and indictment dismissed, with leave to the People to re-present any appropriatecharges to another grand jury.
Footnote 1: Habib was not provided with atranslator in the grand jury, but one was used when he testified at trial.
Footnote 2: In itsMolineaux/Ventimiglia determination, County Court barred any reference by Shafiq attrial that the two men usually "sell stolen stuff."
Footnote 3: Mitchell did not testify beforethe grand jury or at trial.
Footnote 4: This individual was identifiedbefore the grand jury as Mitchell, but was not so identified by name at trial.
Footnote 5: Chase did not testify before thegrand jury.