| People v Nash |
| 2010 NY Slip Op 00405 [69 AD3d 1113] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lester D.Nash, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered May 23, 2007, upon a verdict convicting defendant of the crime of assault in the seconddegree.
When this case was previously before this Court, we withheld decision and remitted thematter to County Court for an assessment as to whether the manner of presentment to the grandjury of charges against defendant created an undue risk that evidence of one criminal transactionwas improperly considered in the grand jury's deliberation of another.[FN1]Upon remittal, after reviewing the trial court's file,[FN2]the Court Clerk's file, the grand jury minutes pertaining to all the relevant indictments, theminutes of all court appearances and the trial transcripts, County Court (Cawley, J.) scheduled ahearing. Following such hearing—at which the court heard testimony from defendant, theAssistant District Attorney who presented the assault charges to the grand jury and the courtreporter assigned to the grand jury proceedings in question—County Court determinedthat the integrity of the grand jury proceedings was not so impaired as to create the possibility ofprejudice to defendant. Both parties have submitted supplemental briefs addressing CountyCourt's decision.
The testimony adduced at the hearing established that the grand jury first heard evidencewith regard to the assault charge on December 15, 2005, and the presentation of that evidenceconcluded with a vote being taken on December 20, 2005. Defendant contends that, onDecember 20, the People also started to present evidence to the same grand jury regarding a drugpossession charge against him. This contention is based on, among other things, an allegedconversation with the Assistant District Attorney that day outside the grand jury room (whichconversation the Assistant District Attorney does not recall). The People concede that thepresentation of the drug possession charge was scheduled to begin on December 20, but assertthat it was postponed in order to obtain additional evidence and was not presented until thefollowing January or February.[FN3]Defendant also argues that the integrity of the grand jury proceedings was impaired because acase calendar—which included defendant's name and reference to both the assault anddrug possession charge—was in the grand jury room on December 20 and may have beenviewed by the foreperson and other grand jurors.
Initially, we note that grand jury proceedings enjoy a presumption of regularity which is thechallenger's burden to overcome (seePeople v Serkiz, 17 AD3d 28, 31 [2005]). "Dismissal of indictments under CPL 210.35(5) should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conductor errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury" (People vHuston, 88 NY2d 400, 409 [1996]). Here, while the Assistant District Attorney anddefendant had different recollections of the events that transpired before the grand jury onDecember 20, 2005, the court reporter—a 20-year veteran—unequivocally testifiedthat she was required to record every word spoken in the grand jury room, that "in grand jurynothing is off the record" and that "[i]f anything was said I would have transcribed it, so if it'snot in the transcript, it was not said." Although the grand jury minutes of December 20 are notincluded in the record before us, there does not seem to be any dispute that there is nothingtherein which refers to the drug possession charges against defendant. Moreover, while theAssistant District Attorney's recollection of the circumstances was admittedly based upon hisreview of the case file and the grand jury minutes, it was corroborated by his testimony that hehad never had a holdover grand jury.[FN4]In contrast, defendant's clearly erroneous testimony that the assault victim testified before thegrand jury on December 20 casts doubt on the accuracy of his allegations regarding theremainder of the events of that day.
Considering all of the evidence, we discern no basis to disturb County Court's assessment ofthe credibility of the witnesses or its conclusion that, since the evidence did not supportdefendant's contention that evidence of drug charges against him was improperly considered inthe grand jury's deliberation of the assault charges, the integrity of the grand jury proceedingswas not impaired so as to create an undue risk of prejudice to defendant (see CPL 210.35[5]; People v Huston, 88 NY2d at 409; People v Caracciola, 78 NY2d 1021,1022 [1991]; People v Darby, 75 NY2d 449, 454 [1990]; People v Jones, 239AD2d 234, 235 [1997]). While we agree with County Court's reservations regarding the People'sgeneral practice of allowing grand jurors to have access to calendars that show potentialadditional charges not currently being presented to them, we also agree that the mere presence ofsuch calendars here was insufficient to impair the integrity of the proceedings (see generallyPeople v Lashua, 264 AD2d 951, 952 [1999]).
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The facts surrounding theunderlying criminal matter are set out in detail in our previous decision (People v Nash, 64 AD3d 878[2009]) and will not be repeated here.
Footnote 2: The judge who presided overdefendant's assault trial has since retired from the bench.
Footnote 3: This assertion is supported bycertain memoranda received in evidence at the hearing and the testimony of the Assistant DistrictAttorney.
Footnote 4: This is significant because, ifevidence of the drug charges had been presented to the grand jury on December 20, 2005 and theterm ended on December 31, 2005 without concluding such presentation, that grand jury panelwould have been considered a holdover jury if the grand jurors had returned in January orFebruary 2006 for completion of the presentation.