| People v Malan-Pomaeyna |
| 2010 NY Slip Op 03353 [72 AD3d 988] |
| April 20, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JoseMalan-Pomaeyna, Respondent. |
—[*1] Salvatore C. Adamo, New York, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the CountyCourt, Rockland County (Bartlett, J.), dated June 16, 2009, as granted that branch of thedefendant's omnibus motion which was to dismiss count three of Rockland County indictmentNo. 09-00164, charging him with criminal mischief in the third degree.
Ordered that the order is affirmed insofar as appealed from.
Pursuant to CPL 190.25 (6), the County Court and the District Attorney are the "legaladvisors" of the grand jury. A grand jury "need not be instructed with the same degree ofprecision that is required when a petit jury is instructed on the law" and the Court of Appeals has"deem[ed] it sufficient if the District Attorney provides the Grand Jury with enough informationto enable it intelligently to decide whether a crime has been committed and to determine whetherthere exists legally sufficient evidence to establish the material elements of the crime"(People v Calbud, Inc., 49 NY2d 389, 394-395 [1980]; see People v Caracciola,78 NY2d 1021, 1022 [1991]; People v Goetz, 68 NY2d 96, 115 [1986]; People vValles, 62 NY2d 36, 38 [1984]; People v Bethune, 65 AD3d 749, 753 [2009]).
"The primary function of the Grand Jury in our system is to investigate crimes and determinewhether sufficient evidence exists to accuse a citizen of a crime and subject him or her tocriminal prosecution" (People v Calbud, Inc., 49 NY2d at 394). The Court of Appealshas cautioned that "[w]hen the District Attorney's instructions to the Grand Jury are soincomplete or misleading as to substantially undermine [its] essential function, it may fairly besaid that the integrity of that body has been impaired" (People v Calbud, Inc., 49 NY2dat 396; see CPL 210.20 [1] [c]; 210.35 [5]; People v Caracciola, 78 NY2d at1022).
Under the facts of this case, the People's failure to instruct the grand jury on accessorialliability (see Penal Law § 20.00) impaired the integrity of that body (seeCPL 210.35 [5]; People v Guzman, 137 Misc 2d 129, 135-136 [1987]; see generally People v Samuels, 12AD3d 695, 698-699 [2004]; cf. People v Licausi, 98 AD2d 751 [1983]). We notethat the County Court granted leave to the People to re-[*2]present the charge of criminal mischief in the third degree toanother grand jury.
The People's remaining contentions are without merit.
Accordingly, the County Court properly granted that branch of the defendant's omnibusmotion which was to dismiss count three of Rockland County indictment No. 09-00164,charging him with criminal mischief in the third degree. Rivera, J.P., Dillon, Florio and Balkin,JJ., concur.