| People v Jeffery |
| 2010 NY Slip Op 01295 [70 AD3d 1512] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Thomas Jeffery,Respondent. |
—[*1] Fiandach & Fiandach, Rochester (Edward L. Fiandach of counsel), fordefendant-respondent.
Appeal from an order of the Monroe County Court (John J. Connell, J.), dated June 7, 2007.The order granted that part of the motion of defendant seeking to dismiss the indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the motion seeking to dismiss the indictment is denied, the indictment is reinstated, andthe matter is remitted to Monroe County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order that dismissed the indictment againstdefendant on the ground that the People failed to comply with the requirements of Vehicle andTraffic Law § 1194 (2) (f) and thus improperly presented evidence to the grand juryconcerning defendant's refusal to submit to a chemical test. County Court determined that theremaining admissible evidence before the grand jury was legally insufficient. We agree with thePeople that the court erred in dismissing the indictment. Although the court properly concludedthat the evidence of defendant's refusal to submit to a chemical test was erroneously presented tothe grand jury (see generally People v Thomas, 46 NY2d 100, 108 [1978], appealdismissed 444 US 891 [1979]), we note that " 'dismissal of an indictment under CPL 210.35(5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulentconduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury'" (People v Sheltray, 244 AD2d 854, 855 [1997], lv denied 91 NY2d 897[1998]). We agree with the People that there were no such instances here. Furthermore, we rejectdefendant's contention that the grand jury proceedings were impaired by the presentation of theinadmissible evidence. It is well settled that "not every . . . elicitation ofinadmissible testimony . . . renders an indictment defective. Typically, thesubmission of some inadmissible evidence will be deemed fatal only when the remainingevidence is insufficient to sustain the indictment" (People v Huston, 88 NY2d 400, 409[1996]). We also agree with the People that the remaining admissible evidence was legallysufficient to support the indictment (seegenerally People v Velasquez, 65 AD3d 1266, 1266-1267 [2009]; People v Scroger, 35 AD3d 1218[2006], lv denied 8 NY3d 950 [2007]; People v Hamm, 29 AD3d 1079, 1080 [2006]). We thereforereverse the order, deny that part of defendant's omnibus motion seeking to dismiss theindictment, reinstate the indictment, and remit the matter to County Court for furtherproceedings on the indictment. Present—Smith, J.P., Fahey, Carni and Green, JJ.