| People v Mujahid |
| 2007 NY Slip Op 09448 [45 AD3d 1184] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v NadeemMujahid, Respondent. |
—[*1] Cheryl Coleman, Albany, for respondent.
Kane, J. Appeal from an order of the County Court of Albany County (Herrick, J.), enteredOctober 30, 2006, which granted defendant's motion to dismiss the indictment.
Defendant owned a convenience store that was a target of an undercover investigation intothe sale of cigarettes bearing counterfeit excise tax stamps. After defendant twice purchasedcartons of what he believed to be untaxed cigarettes from a confidential informant, a grand juryproceeding was held. The grand jury handed up an indictment charging defendant with sevencrimes related to his purchase of these cigarettes. Following arraignment, defendant moved for,among other things, dismissal of the indictment based upon deficiencies in the grand juryproceeding. County Court granted the motion, finding that the prosecutor improperly introducedevidence of defendant's uncharged crimes and provided an insufficient instruction on the defenseof entrapment. The People appeal.
The prosecutor's introduction of evidence concerning uncharged crimes did not requiredismissal of the indictment. An indictment will be dismissed based upon defective grand juryproceedings only when "the integrity thereof is impaired and prejudice to the defendant mayresult" (CPL 210.35 [5]; see CPL 210.20 [1] [c]). Dismissal is an exceptional remedywhich should be limited to instances where prosecutorial wrongdoing or errors potentiallyprejudice the grand jury's ultimate decision (see People v Huston, 88 NY2d 400, 409[1996]). "Even where [*2]inadmissible evidence is presented to agrand jury, such will be deemed fatal only when the remaining evidence is insufficient to sustainthe indictment" (People v Crandall, 306 AD2d 748, 749 [2003], lv denied 100NY2d 619 [2003]; see People v Huston, 88 NY2d at 409).
Here, the prosecutor did not err in introducing evidence that defendant offered to help theinformant conceal money which was being taken outside the country, money allegedlyconstituting the proceeds of an illegal cigarette tax evasion enterprise. These actions wererelevant to defendant's intent to commit the crimes charged, his knowledge that he was engagedin illegal activity and his entrapment defense by showing his willingness to further this illegaloperation (see People v Calvano, 30 NY2d 199, 205-206 [1972]; People vRussell, 179 AD2d 521, 522 [1992], lv denied 79 NY2d 952 [1992]). As informationconcerning these uncharged crimes fits within Molineux exceptions, the prosecutor wasauthorized to introduce this testimony. Additionally, the prosecutor addressed the purpose of thisevidence by giving a limiting instruction and further elucidated the proper purpose in response toa question from a grand juror (see People v Crandall, 306 AD2d at 749). ConsideringCounty Court's correct determination that the evidence was sufficient to support the charges inthe indictment, dismissal was not required even if the evidence of uncharged crimes should nothave been admitted (see People v Huston, 88 NY2d at 409; People v Crandall,306 AD2d at 749).
The prosecutor's instructions on the defense of entrapment did not require dismissal of theindictment. A prosecutor need not instruct on defenses which are merely suggested by theevidence, but must instruct a grand jury on complete defenses which the evidence supports, thuspotentially eliminating a needless or unfounded prosecution (see People v Mitchell, 82NY2d 509, 514-515 [1993]; People v Lancaster, 69 NY2d 20, 26-27 [1986], certdenied 480 US 922 [1987]; People v Johnson, 277 AD2d 702, 703-704 [2000], lvdenied 96 NY2d 831 [2001]). Although entrapment is a complete defense (see PenalLaw § 40.05; compare People vQuintana, 36 AD3d 505, 506 [2007], lv denied 9 NY3d 868 [2007]), theevidence here only suggested, but did not establish, that defense. Accordingly, the prosecutor wasnot required to instruct the grand jury regarding entrapment.
In any event, the prosecutor's entrapment instructions were not so deficient as to requiredismissal of the indictment. Grand juries need not be instructed with the same precision requiredin charging a trial jury (see People v Valles, 62 NY2d 36, 38 [1984]; People vCannon, 210 AD2d 764, 766 [1994]). But the prosecutor must provide adequate guidance topermit the grand jury to carry out its function of intelligently determining whether a crime hasbeen committed and if the elements of that crime have been established by legally sufficientevidence (see People v Valles, 62 NY2d at 38; People v Wade, 260 AD2d 946,947 [1999]). "The test is whether the instructions were so deficient as to impair the integrity ofthe [g]rand [j]ury's deliberations" (People v Cannon, 210 AD2d at 766 [citationsomitted]). The prosecutor here did not read the statutory definition of entrapment, but hisinstructions addressed the crucial elements of the defense (see Penal Law § 40.05).Defendant does not point to any particular portion of the statute that was omitted which causedhim prejudice. Hence, we find that the instructions were not so deficient as to prejudicedefendant or impair the integrity of the grand jury proceedings (see People v Wade, 260AD2d at 947-948).
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is reversed, onthe law, motion to dismiss the indictment denied, and matter remitted to the County Court ofAlbany County for further proceedings not inconsistent with this Court's decision.