| People v Walton |
| 2010 NY Slip Op 01005 [70 AD3d 871] |
| February 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v DdanWalton, Respondent. |
—[*1] Robert J. Aiello, Maspeth, N.Y., and John S. Esposito, New York, N.Y. (Michael R.Ambrecht of counsel), for respondent (one brief filed).
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Kase, J.), dated February 23, 2009, as, upon reviewing the grand juryminutes pursuant to a stipulation in lieu of motions, dismissed the indictment on the ground thatthe grand jury proceeding was defective within the meaning of CPL 210.35 (5).
Ordered that the order is reversed insofar as appealed from, on the law and the facts, theindictment is reinstated, and the matter is remitted to the Supreme Court, Nassau County, forfurther proceedings on the indictment.
A grand jury indicted the defendant on charges of, inter alia, murder in the second degree(Penal Law § 125.25 [2]), manslaughter in the second degree (Penal Law § 125.15[1]), and reckless driving (Vehicle and Traffic Law § 1212) for allegedly engaging in anextremely high speed and dangerous car race or chase on the westbound Southern State Parkwaywhile intoxicated from the consumption of alcohol. At some point during the race or chase, thedefendant lost control of his car near a curve in the parkway. The defendant's car spun out ofcontrol, struck the center divider between the westbound and eastbound sides of the parkway,and then spun around again, before coming to its final resting point. According to the accidentreconstruction expert, just before striking the center divider, the defendant's car was traveling atminimum speed of 109 miles per hour, almost twice the 55 miles-per-hour speed limit. As aresult of the crash, the defendant's back-seat passenger was ejected from the car and sustainedfatal injuries.
The defendant pleaded not guilty to all charges. Thereafter, pursuant to a stipulation in lieuof motions, the District Attorney agreed to provide the court with a copy of the grand juryminutes for the court to review as to, inter alia, the legal sufficiency of the evidence to supportthe indictment and the adequacy of the legal instructions to the grand jury.
Upon reviewing the grand jury minutes, the court dismissed the indictment on the groundthat the grand jury proceeding was defective within the meaning of CPL 210.35 (5) based uponthe prosecutor's improper introduction of evidence regarding the presence of a marijuanametabolite in the [*2]defendant's blood on the date of the crashand the effects of marijuana use on an individual, the prosecutor's failure to instruct the grandjury regarding the effect of intoxication on the culpable mental state of depraved indifferencewith respect to murder in the second degree, and the prosecutor's incorrect equating of the term"recklessly" as used in the Penal Law, with the term "reckless" as used in the Vehicle and TrafficLaw, when charging the grand jury with respect to reckless driving. The People appeal.
Pursuant to CPL 210.20, the court may dismiss an indictment on the ground that "[t]he grandjury proceeding was defective, within the meaning of section 210.35" (CPL 210.20 [1] [c]). As isrelevant to this appeal, CPL 210.35 provides that a grand jury proceeding is defective within themeaning of CPL 210.20 (1) (c) when the proceeding "fails to conform to the requirements of[Penal Law article 190] to such degree that the integrity thereof is impaired and prejudice to thedefendant may result" (CPL 210.35 [5]). The statutory test for dismissal of an indictmentpursuant to CPL 210.35 (5) "is very precise and very high" and should "be limited to thoseinstances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice theultimate decision reached by the Grand Jury" (People v Huston, 88 NY2d 400, 409[1996] [citations and internal quotation marks omitted]).
Although the prosecutor improperly elicited testimony from a forensic toxicologist about theeffects of marijuana use on an individual after that witness testified that he could not determine,from the presence of a marijuana metabolite in the defendant's blood on the date of the crash,whether the defendant was, in fact, under the influence of marijuana at the time of the crash(cf. e.g. People v D'Amico, 261 AD2d 633, 634 [1999]), ultimately, the prosecutorinstructed the grand jury to disregard all of the marijuana-related evidence, and redacted themarijuana-related information from certain documents in evidence. While the Supreme Courtdismissed the prosecutor's efforts in that regard as ineffectual, the grand jury is presumed to havefollowed the prosecutor's curative instructions, dispelling any prejudice to the defendant (seePeople v Sandven, 287 AD2d 279, 280 [2001]; People v Di Fondi, 275 AD2d 1018[2000]; see generally People v Sullivan, 68 NY2d 495, 502 [1986]).
In any event, in the context of a grand jury proceeding, "[t]ypically, the submission of someinadmissible evidence will be deemed fatal only when the remaining evidence is insufficient tosustain the indictment" (People v Huston, 88 NY2d at 409; see People v Hansen,95 NY2d 227, 233 [2000]; see also People v Darby, 75 NY2d 449, 454 [1990];People v Ramirez, 298 AD2d 413 [2002]; People v Smith, 289 AD2d 597, 598[2001]; People v Marini, 173 AD2d 742, 743 [1991]). Here, the evidence regarding thepresence of a marijuana metabolite in the defendant's blood was not necessary to sustain any ofthe counts charged in the indictment.
Further, contrary to the Supreme Court's determination that the prosecutor should haveinstructed the grand jury regarding the effect of intoxication on the culpable mental state ofdepraved indifference, "a prosecutor is not required to present mitigating defenses to a grandjury" (People v Harris, 98 NY2d 452, 475 [2002]; see People v Valles, 62 NY2d36, 39 [1984]; People v Hosein, 221 AD2d 563, 563 [1995]). Intoxication, like amitigating defense, "merely reduces the gravity of the offense by negating an element"(People v Harris, 98 NY2d at 475). In the context of depraved indifference murder, asuccessful intoxication "defense" will usually result only in mitigation to the lesser offense ofreckless manslaughter, a crime for which the grand jury herein indicted the defendant (see e.g. People v Atkinson, 7 NY3d765, 766 [2006]; People vJean-Baptiste, 44 AD3d 792, 793 [2007]; People v McPherson, 35 AD3d 765, 766 [2006]).
Addressing the prosecutor's admittedly improper equating of the term "recklessly" as used inthe Penal Law, with the term "reckless" as used in the Vehicle and Traffic Law, a prosecutor'sinstructions to the grand jury are "sufficient if the [prosecutor] provides the Grand Jury withenough information to enable it intelligently to decide whether a crime has been committed andto determine whether there exists legally sufficient evidence to establish the material elements ofthe crime" (People v Calbud, Inc., 49 NY2d 389, 394-395 [1980]). Generally, theforegoing standard may be satisfied by the prosecutor reading to the grand jury the statute underwhich the defendant is sought to be charged (id. at 395 n 1).
Here, when instructing the grand jury regarding reckless driving under Vehicle and TrafficLaw § 1212, the prosecutor tracked the relevant language of that statute. Thus, theprosecutor's [*3]instructions were sufficient (id.). Whilethe prosecutor superfluously further instructed the grand jury, in effect, regarding the culpablemental state of "recklessly" as if it were an "element" of the offense of reckless driving (seePeople v Ackroyd, 144 Misc 2d 149, 154 [1989]), the defendant failed to explain how hewas prejudiced by the prosecutor's "mere mistake" (People v Huston, 88 NY2d at 409).
Based on the foregoing, contrary to the Supreme Court's finding, the prosecutor's errorsduring the grand jury proceeding did not "potentially prejudice the ultimate decision reached bythe Grand Jury" (id.). Thus, dismissal of the indictment on the ground that the grand juryproceeding was defective within the meaning of CPL 210.35 (5) was not warranted. Rivera, J.P.,Dickerson, Chambers and Hall, JJ., concur.