| People v Conklin |
| 2013 NY Slip Op 02893 [105 AD3d 1387] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, vChristopher Conklin, Respondent. |
—[*1] Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.),dated November 1, 2012. The order granted that part of defendant's omnibus motionseeking to dismiss the indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, that part of defendant's omnibus motion seeking to dismiss the indictment is denied,the indictment is reinstated and the matter is remitted to Supreme Court, Monroe County,for further proceedings on the indictment.
Memorandum: On appeal from an order that granted that part of defendant's omnibusmotion seeking to dismiss the indictment pursuant to CPL 210.35 (5), the People contendthat Supreme Court erred in determining that the integrity of the grand jury proceedingshad been compromised due to prosecutorial misconduct. We agree with the People. "'[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limitedto instances of prosecutorial misconduct, fraudulent conduct or errors which potentiallyprejudice the ultimate decision reached by the [g]rand [j]ury' " (People vSheltray, 244 AD2d 854, 855 [1997], lv denied 91 NY2d 897 [1998]; seePeople v Huston, 88 NY2d 400, 409 [1996]). As the Court of Appeals has stated,"not every improper comment, elicitation of inadmissible testimony, impermissiblequestion or mere mistake renders an indictment defective" (Huston, 88 NY2d at409; see People v Butcher,11 AD3d 956 [2004], lv denied 3 NY3d 755 [2004]).
Here, the court stated in its written decision that the grand jury proceeding wasdefective due to the prosecutor's cross-examination of defendant and "the insufficiencyof [the prosecutor's] curative instruction." Although the court did not specify the basis forits conclusion that the cross-examination was defective, it appears that the court wasconcerned that the prosecutor asked defendant whether he was aware that thecomplainant made a recording of the incident between them that led to the criminalcharges. In response, defendant testified that, yes, he had "been told" that there was arecording, whereupon the prosecutor asked whether he was still willing to testify that hedid not raise his voice or become upset during the incident. Defendant responded, "Ididn't really become upset. No." No evidence of a recording was [*2]presented to the grand jury, and the complainant, who hadtestified before defendant, had not been asked whether she made a recording.
We conclude that, in the absence of any indication in the record that the prosecutorlacked a good faith basis to ask defendant whether he was aware that the complainanthad recorded the incident, the court erred in determining that the prosecutor engaged inmisconduct during his cross-examination that warrants dismissal of the indictment.Indeed, given that defendant testified that he had been told that there was a recording, itappears that the prosecutor in fact had a good faith basis to ask the question. In anyevent, we do not perceive how defendant could have been prejudiced by the prosecutor'scross-examination. As noted, when asked whether he was aware that there was arecording, defendant stated that he would adhere to his testimony that he did not raise hisvoice and did not become upset during the incident. Thus, the prosecutor's apparentattempt at impeachment did not succeed. If anything, the prosecutor's reference to therecording and the failure of the prosecutor to present evidence of such a recordingworked to defendant's benefit. We also note that the complainant's testimony was legallysufficient to establish that defendant committed the charged crime even if he did not raisehis voice or become upset during the incident.
We further conclude that the prosecutor did not engage in misconduct when, inresponse to questions whether the complainant made a recording, he instructed the grandjury members that he did not have any further evidence and that they should make their"decision based on the testimony you heard in the grand jury from the witnesses." Whena grand jury member then asked, "Does that mean there is [no recording]," the prosecutorresponded, "You can certainly consider the testimony that you heard. That's the bestanswer I can give you. And nothing that you didn't hear." Even assuming, arguendo, thatdefendant is correct that the prosecutor should have instructed the grand jury membersthat they could re-call the complainant to ask her whether a recording existed, weconclude that the prosecutor's failure to do so was not fraudulent in nature or soegregious as to impair the integrity of the proceeding. We therefore reverse the order,deny that part of defendant's omnibus motion seeking to dismiss the indictment andreinstate the indictment. Present—Scudder, P.J., Peradotto, Carni, Lindley andWhalen, JJ.