| People v Connolly |
| 2009 NY Slip Op 04822 [63 AD3d 1703] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leo T.Connolly, Appellant. |
—[*1] R. Michael Tantillo, Special District Attorney of Seneca County, Canandaigua, forrespondent.
Appeal from a judgment of the Seneca County Court (W. Patrick Falvey, J.), renderedOctober 16, 2008. The judgment convicted defendant, upon a jury verdict, of official misconduct(two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the motion seeking to dismiss the indictment is granted and the indictment isdismissed without prejudice to the People to re-present any appropriate charges under countsthree and five of the indictment to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, oftwo counts of official misconduct (Penal Law § 195.00 [1]). The evidence at trialestablished that defendant, the Sheriff of Seneca County, directed certain members of his officeto identify, locate, follow and, if possible, issue tickets for alleged traffic violations to membersof the public who opposed his candidacy for Sheriff or posted Internet articles that were criticalof his job performance. Contrary to defendant's contention, the evidence is legally sufficient tosupport the conviction. "A public servant is guilty of official misconduct when, with intent toobtain a benefit or deprive another person of a benefit . . . [, he or she] commits anact relating to his [or her] office but constituting an unauthorized exercise of his [or her] officialfunctions, knowing that such act is unauthorized" (id.). Here, the evidence presented attrial established that defendant engaged in "an 'unauthorized exercise' of police functions" by,inter alia, directing investigations of his opponents and critics for purely political purposes andthus misusing department resources and personnel for his own political benefit (People vFeerick, 93 NY2d 433, 448 [1999]). Such evidence of "flagrant and intentional abuse ofauthority by [one] empowered to enforce the law" is legally sufficient to support the conviction(id. at 445).
We agree with defendant, however, that County Court erred in denying that part of hisomnibus motion seeking to dismiss the indictment on the ground that the grand jury proceedingwas defective inasmuch as it failed "to conform to the requirements of [CPL article 190] to suchdegree that the integrity thereof [was] impaired and prejudice to the defendant" resulted (CPL210.35 [5]). A special prosecutor was appointed to investigate alleged wrongdoing by publicofficials in Seneca County, including defendant. After the grand jury was empaneled and the[*2]special prosecutor began to present evidence, one of thegrand jurors informed the prosecutor that she was the mother of one of the alleged victims andthe mother-in-law of another. In addition, the grand juror's daughter had commenced a civilaction against defendant, allegedly arising from the same facts that resulted in the instantindictment against defendant. Although the special prosecutor instructed the grand juror not toparticipate in any proceeding concerning those witnesses and not to listen to their testimony, shewas permitted to remain in the grand jury room during the presentation of the remainingevidence concerning defendant and she heard defendant's testimony. She then was permitted toparticipate, consult and vote on all of the charges against defendant that did not involve herrelatives.
We note at the outset that this issue survives a conviction after trial based upon legallysufficient evidence (see People v Huston, 88 NY2d 400, 410-411 [1996]; People vWilkins, 68 NY2d 269, 277 n 7 [1986]). Pursuant to CPL 210.20 (1), the court "may, uponmotion of the defendant, dismiss [the] indictment . . . upon the ground that. . . [t]he grand jury proceeding was defective." A grand jury proceeding isdefective pursuant to CPL 210.20 (1) (c) "when the proceeding 'fails to conform to therequirements of [CPL article 190] to such degree that the integrity thereof is impaired andprejudice to the defendant may result' " (Wilkins, 68 NY2d at 278). Although "[t]helikelihood of prejudice turns on the particular facts of each case" (People v Huston, 88NY2d 400, 409 [1996]), "defendant need not demonstrate actual prejudice" (People vSayavong, 83 NY2d 702, 709 [1994]), and "a close relationship between a grand juror and awitness raises the real risk of potential prejudice" (People v Revette, 48 AD3d 886, 887 [2008]).
Here, although the grand juror in question did not participate in the vote concerning theparticular count of the indictment that pertained to her daughter and son-in-law, she participatedin the remainder of the proceedings concerning defendant, including the vote to indict him on theremaining counts in the indictment. In addition, the daughter of the grand juror had a financialinterest in defendant's indictment and conviction, arising from the pending civil action, and weconclude that potential prejudice arose from permitting the victims' family member to determinewhether to indict defendant. The special prosecutor was therefore required to excuse the grandjuror from participating in the case against defendant or to present the matter to the court (seegenerally People v Nash, 236 AD2d 845 [1997], lv denied 89 NY2d 1039 [1997];People v La Duca, 172 AD2d 1054, 1055 [1991]). Because he failed to do so, theindictment must be dismissed without prejudice to the People to re-present any appropriatecharges under counts three and five of the indictment to another grand jury.
In view of our determination, we do not address defendant's remaining contention.Present—Hurlbutt, J.P., Smith, Centra, Pine and Gorski, JJ.