| People v Spratley |
| 2013 NY Slip Op 00822 [103 AD3d 1211] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KentD. Spratley, 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.),rendered November 17, 2010. The appeal was held by this Court by order entered June 8,2012, decision was reserved and the matter was remitted to Oneida County Court forfurther proceedings (96 AD3d 1420). The proceedings were held and completed (BarryM. Donalty, J.).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: We previously held this case, reserved decision and remitted thematter to County Court to rule on defendant's renewed pretrial motion to dismiss theindictment "based on allegedly prejudicial conduct during the grand jury proceeding,"i.e., the presentation of testimony concerning handguns found in a bag in the trunk ofdefendant's vehicle (People v Spratley, 96 AD3d 1420, 1421 [2012]). Wedetermined in our prior decision that defendant's remaining contentions on the appealfrom the judgment of conviction after a nonjury trial lacked merit (id. at1420-1421). Upon remittal, the court denied the motion, and we now affirm.
Defendant contended in support of his renewed motion to dismiss the indictment thatcertain testimony of a police investigator regarding the handguns was not relevant andwas prejudicial. A court may, upon the motion of a defendant, dismiss an indictment onthe ground that the grand jury proceeding was "defective" (CPL 210.20 [1] [c]). A grandjury proceeding is defective when "the integrity thereof is impaired and prejudice to thedefendant may result" (CPL 210.35 [5]; see People v Huston, 88 NY2d 400, 409[1996]). There "must be an articulable 'likelihood of' or at least 'potential for' prejudice"(People v Adessa, 89 NY2d 677, 686 [1997]; see Huston, 88 NY2d at409). Dismissal of an indictment is "limited to those instances where prosecutorialwrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decisionreached by the [g]rand [j]ury" (Huston, 88 NY2d at 409).
Here, contrary to defendant's contention, there was no error in the presentation of thetestimony regarding the handguns during the grand jury proceeding. The victim testifiedbefore the grand jury that defendant pulled a handgun from his waistband, and the victimthen heard a "bang" and realized he had been shot. The grand jury testimony thathandguns were found in a bag in defendant's abandoned vehicle two hours later was thusrelevant. In any event, even if the [*2]testimony wasinadmissible, we agree with the court that there was no reason to dismiss the indictment.Indeed, " 'not every . . . elicitation of inadmissible testimony. . . renders an indictment defective. Typically, the submission of someinadmissible evidence will be deemed fatal only when the remaining evidence isinsufficient to sustain the indictment' " (People v Jeffery, 70 AD3d 1512, 1513 [2010], quotingHuston, 88 NY2d at 409; see People v Peck, 96 AD3d 1468, 1469 [2012]), which isnot the case here. Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.