| People v Loomis |
| 2010 NY Slip Op 01390 [70 AD3d 1199] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Naomi Loomis,Robert "Stan" Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino,Respondents. |
—[*1] Dreyer Boyajian, L.L.P., Albany (John B. Casey of counsel), for Naomi Loomis and another,respondents. Law Office of E. Stewart Jones, Troy (E. Stewart Jones of counsel), for Kenneth MichaelLoomis and others, respondents.
Stein, J. Appeal from an order of the County Court of Albany County (Herrick, J.), enteredSeptember 15, 2008, which granted defendants' motions to dismiss the indictment.
The People alleged that defendants were involved in unlawfully selling steroids and relateddrugs via the Internet to customers in, among other places, the City of Albany. In May 2008,after a lengthy course of proceedings—including three previous indictments[FN1]before two different grand juries—a 33-count indictment (hereinafter the fourthindictment) was returned. County Court previously dismissed 11 counts of the third indictment,but granted the People [*2]leave to re-present. In May 2008, thePeople reconvened the grand jury, which had returned the third indictment in October 2007 andpresented new evidence and a new indictment. Following the grand jury's return of the fourthindictment, County Court again entertained motions to dismiss and, after having released thegrand jury minutes, dismissed the fourth indictment in its entirety, without granting leave tore-present. The People now appeal.
A grand jury proceeding is defective when it "fails to conform to the requirements of [CPLarticle 190] to such degree that the integrity thereof is impaired and prejudice to the defendantmay result" (CPL 210.35 [5]). Although there is no requirement that actual prejudice bedemonstrated, "[d]ismissal of indictments under CPL 210.35 (5) should . . . belimited to those instances where prosecutorial wrongdoing, fraudulent conduct or errorspotentially prejudice the ultimate decision reached by the [g]rand [j]ury" (People vHuston, 88 NY2d 400, 409 [1996]). "[T]he question whether a particular presentment was soimproper as to impair the integrity of the [g]rand [j]ury . . . proceeding and tocreate the potential for prejudice [is] . . . a question of law" (People vAdessa, 89 NY2d 677, 684-685 [1997]).
Under the particular facts and circumstances surrounding these complicated grand juryproceedings, we agree with County Court's finding that the integrity thereof was impaired(see id. at 685). Here, the grand jury was presented with evidence in October 2007 andgiven detailed instructions with regard to the law and the indictment being presented at that time.In May 2008—approximately seven months later—the same grand jury waspresented with a completely new indictment that did not include any of the 11 counts previouslydismissed, but did include numerous new counts including, among other things, one count ofenterprise corruption—based on 65 pattern criminal acts—and other countsinvolving new theories, accomplices, offense dates and locations. At that time, the Peoplepresented the testimony of five additional witnesses and made available the exhibits andtranscript of the minutes of the proceeding held in October 2007.
At the commencement of the May 2008 proceeding, the Assistant District Attorney gave thefollowing explanation to the grand jury: "The next case for your consideration is a supercedingindictment, re-presentation of an indictment that you previously heard on the 12th of October,2007. This grand jury was extended for this investigation. There will now be more witnessescalled. However, the testimony and the exhibits that were admitted prior to this are still availableto you. So we have a transcript of the minutes and we have all the exhibits from the last case thatare here for you to review, if need be, or whenever you wish. Okay? So we expect to call fivewitnesses today." At the conclusion of the presentation of those witnesses, the People remindedthe grand jury that it could review all of the evidence, including the "transcripts available oftestimony [sic]", and then gave instructions on the law. In our view, given thecomplexity of the evidence presented, the charges sought and the intervening lapse of sevenmonths between presentations to the grand jury, the People failed to "provide adequate guidanceto permit 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" (People v Mujahid, 45AD3d 1184, 1186 [2007], lv denied 10 NY3d 814 [2008]).
For example, the introduction by the People at the outset of the fourth grand jury proceedingimproperly referred to the new indictment as a superceding indictment and led the [*3]grand jury to believe that it was merely a continuation of theprevious proceedings; the grand jury was never informed that it was being presented with anentirely new indictment for its consideration. Additionally, the record reflects that the Peopleprovided no verbal guidance to the grand jury as to how many counts to consider for eachcharge, which counts of the indictment charged which crimes or what evidence related to thevarious counts of the indictment being sought. Moreover, the grand jury was left to sort throughstacks of materials, including transcripts and exhibits, to decide whether an entirely new versionof the indictment should be returned, and it clearly had inadequate instructions and guidance toconsider numerous new criminal pattern acts in the relatively brief amount of time that itdeliberated. Although it was not necessary that the instructions to the grand jury be as precise asthose given to a petit jury, upon our review of this record as a whole, we find that theinstructions provided were so deficient and confusing that they substantially undermined theintegrity of the proceedings, requiring dismissal of the indictment (see People vCaracciola, 78 NY2d 1021, 1022 [1991]).[FN2]
Nonetheless, in the exercise of our discretion, we conclude that leave to re-present thecharges should be granted (see generally People v Baker, 64 NY2d 1027, 1028 [1985];Matter of Von Bulow, 63 NY2d 221, 225 [1984]). Notably, in dismissing the priorindictments—including the third indictment—County Court never found anyimproper motive, attempt to gain an advantage over defendants or any other malfeasance orevidence of bad faith on the part of the People, nor do we perceive any basis in the record forsuch a finding (see People v Price, 144 AD2d 854, 856 [1988]; compare People vHuston, 88 NY2d at 411-412; People v Samuels, 12 AD3d 695, 699 [2004]). Furthermore,defendants have failed to demonstrate that any prejudice would occur if the People were allowedto re-present the charges to another grand jury. Under the circumstances of this case, a lapse of15 months between the first and fourth indictments was not so great a length of time as towarrant the drastic remedy of denial of leave to re-present the charges to another grand jury.While the People's attempts to obtain an indictment here could, arguably, have been moreeffectively pursued, the People are accorded broad discretion in exercising their powers andduties in conducting grand jury proceedings (see People v Huston, 88 NY2d at 406;People v Lancaster, 69 NY2d 20, 25-26 [1986], cert denied 480 US 922 [1987]).Thus, the mere fact of the People's ineffectiveness in complying with County Court's legalrulings with respect to prior grand jury presentations should not serve to prevent them frommaking another attempt to properly pursue charges against defendants based upon the evidenceavailable and in accordance with County Court's prior determinations.
Peters, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the order is modified, as amatter of discretion in the interest of justice, by reversing so much thereof as denied the People'smotion for leave to re-present the charges to a new grand jury; said motion granted; and, as somodified, affirmed.
Footnote 1: The second and thirdindictments were superceding indictments.
Footnote 2: We reject the People'scontention that these deficiencies were sufficiently remedied by the fact that the grand jury hadbefore it a copy of the new indictment and the verdict sheets.