| People v Calkins |
| 2011 NY Slip Op 05314 [85 AD3d 1676] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlJ. Calkins, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedMarch 18, 2010. The judgment convicted defendant, upon a jury verdict, of criminal mischief inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the omnibus motion seeking to dismiss the indictment is granted and the indictment isdismissed without prejudice to the People to re-present any appropriate charges under the solecount of the indictment to another grand jury.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalmischief in the third degree (Penal Law § 145.05 [2]), defendant contends that reversal isrequired based on errors committed by the prosecutor when instructing the grand jury withrespect to the defense of justification. We agree. Although the prosecutor properly charged thegrand jury regarding justification based on the use of physical force in defense of a person(see § 35.15) with respect to the charge of assault in the second degree (§120.05), the prosecutor failed to instruct the jury that such defense was also applicable to thecharge of criminal mischief in the third degree (see § 35.00). We note that thegrand jury voted not to indict defendant for assault but did indict him for criminal mischief.Although it is true that a grand jury "need not be instructed with the same degree of precision thatis required when a petit jury is instructed on the law" (People v Calbud, Inc., 49 NY2d389, 394 [1980]), we conclude that defendant was exposed to the possibility of prejudice by thedeficiencies in the prosecutor's charge regarding justification based on the use of physical forcein defense of a person (see People v Huston, 88 NY2d 400, 409 [1996]). That error wascompounded by the fact that the prosecutor also failed to charge the grand jury regardingjustification based on the use of physical force in defense of premises (see Penal Law§ 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of theprosecutor to inform the grand jury of defendant's request to call a witness to the incident givingrise to the charges (see People v Butterfield, 267 AD2d 870, 873 [1999], lvdenied 95 NY2d 833 [2000]; Peoplev Ali, 19 Misc 3d 672, 674 [2008]; People v Andino, 183 Misc 2d 290, 292-293[2000]).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficientto support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).[*2]Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Nevertheless, defendant's "conviction after trial does not cure defective [g]rand [j]uryproceedings" (Huston, 88 NY2d 400, 411; see People v Connolly, 63 AD3d 1703, 1704-1705 [2009]; People v Samuels, 12 AD3d 695,697 [2004]). We therefore reverse the judgment, grant that part of defendant's omnibus motionseeking to dismiss the indictment and dismiss the indictment without prejudice to the People tore-present any appropriate charges under the sole count of the indictment to another grand jury(see Connolly, 63 AD3d at 1705). Present—Centra, J.P., Fahey, Carni, Sconiersand Green, JJ.