| People v Washington |
| 2011 NY Slip Op 02263 [82 AD3d 1675] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard J.Washington, III, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), renderedDecember 13, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toOneida County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of murder in thesecond degree (Penal Law § 125.25 [1]). Before pleading guilty, defendant moved todismiss the indictment on the ground that the integrity of the grand jury proceedings wasimpaired and defendant was "possibly prejudiced" because the individual listed as the forepersonof the grand jury was in fact the father or other close relative of defendant's former girlfriend, andboth the former girlfriend and defendant were previously parties to an order of protection. Weagree with defendant that County Court erred in denying the motion without first conducting ahearing. We note at the outset that, contrary to the People's contention, the challenge bydefendant "is to the integrity of the grand jury proceeding . . . , and such a challengesurvives defendant's guilty plea" (Peoplev Gilmore, 12 AD3d 1155, 1155-1156 [2004]; see generally People v Hansen,95 NY2d 227, 230-231 [2000]; People vCrumpler, 70 AD3d 1396, 1397 [2010], lv denied 14 NY3d 839 [2010]).
With respect to the merits of defendant's contention, CPL 210.45 (5) provides that a courtmay deny a motion to dismiss the indictment pursuant to CPL 210.20 without conducting ahearing if "(a) [t]he moving papers do not allege any ground constituting legal basis for themotion . . . ; or (b) [t]he motion is based upon the existence or occurrence of facts,and the moving papers do not contain sworn allegations supporting all the essential facts; or (c)[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionabledocumentary proof." If the court does not deny the motion pursuant to CPL 210.45 (5), it musteither grant the motion without conducting a hearing under circumstances specified in CPL210.45 (4), or "it must conduct a hearing and make findings of fact essential to the determinationthereof" (CPL 210.45 [6]). Here, as noted, the moving papers contained allegations that theintegrity of the grand jury proceedings was impaired and defendant was "possibly [*2]prejudiced" based on the fact that the foreperson allegedly was thefather or other close relative of defendant's former girlfriend and the fact that defendant and hisformer girlfriend were parties to an order of protection that had been issued. Allegations that aspecified grand juror was "incapable of performing his [or her] duties because of bias orprejudice" provide a legal basis for a motion to dismiss the indictment (CPL 190.20 [2] [b]; see People v Connolly, 63 AD3d1703, 1705 [2009]; People vRevette, 48 AD3d 886, 886-887 [2008]). Moreover, the moving papers contained therequisite sworn allegations of the essential facts asserted in support of the motion (seeCPL 210.45 [5] [b]), and the People did not conclusively refute defendant's allegations with"unquestionable documentary proof" (CPL 210.45 [5] [c]). We therefore hold the case, reservedecision, and remit the matter to County Court to conduct a hearing on defendant's motion(see CPL 210.45 [6]; see generally People v White, 72 AD2d 913, 914 [1979]).Present—Centra, J.P., Fahey, Carni, Green and Gorski, JJ.