| People v Farley |
| 2013 NY Slip Op 04844 [107 AD3d 1295] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v JoshuaI. Farley, Respondent. |
—[*1] Brian P. Barrett, Lake Placid, for respondent.
Peters, P.J. Appeal from an order of the County Court of Essex County (Meyer, J.),entered June 2, 2009, which granted defendant's motion to dismiss the indictments.
A grand jury returned three indictments charging defendant with various drug-relatedcrimes stemming from three alleged sales of cocaine to a confidential informant. CountyCourt granted defendant's motion to dismiss the indictments, finding that the integrity ofthe grand jury proceedings had been impaired (see CPL 210.35 [5]) due to thePeople's failure to adequately inquire into instances of potential grand juror bias andbecause the grand jury heard allegedly prejudicial evidence. The People appeal, and wereverse.
A grand jury proceeding that yields an indictment is defective when it "fails toconform to the requirements of [CPL article 190] to such degree that the integrity thereofis impaired and prejudice to the defendant may result" (CPL 210.35 [5]). "Dismissal ofan indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and shouldthus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct orerrors potentially prejudice the ultimate decision reached by the [g]rand [j]ury" (People v Sutherland, 104AD3d 1064, 1066 [2013] [internal quotation marks and citations omitted]; see People v Tatro, 53 AD3d781, 783 [2008], lv denied 11 NY3d 835 [2008]; People v Mujahid, 45 AD3d1184, 1185 [2007], lv denied 10 NY3d 814 [2008]). "The likelihood ofprejudice turns on the particular facts of each case, including the weight and nature of theadmissible proof adduced to support the indictment and [*2]the degree of inappropriate prosecutorial influence or bias"(People v Huston, 88 NY2d 400, 409 [1996]; accord People v Moffitt, 20 AD3d 687, 688 [2005], lvdenied 5 NY3d 854 [2005]; see People v Revette, 48 AD3d 886, 887 [2008]).
Here, when the prosecutor inquired as to whether any of the grand jurors knewdefendant, one of the jurors stated that she knew defendant and his mother from growingup in the area where defendant lived. When asked whether that would affect her ability tobe fair in this case, the grand juror responded, "I don't think so. No." In response tofurther questioning by the prosecutor, the grand juror repeatedly and unequivocallyindicated that her prior knowledge of defendant would not affect her judgment. Underthe circumstances, we find that the prosecutor's voir dire of the grand juror wasappropriate and sufficient to ensure such juror's impartiality (see People v Shol, 100 AD3d1461, 1462 [2012], lv denied 20 NY3d 1103 [2013]; People vMonserrate, 24 Misc 3d 1229[A], 2009 NY Slip Op 51665[U], *5-6 [Sup Ct,Queens County 2009]; see generally People v Chambers, 97 NY2d 417 [2002];compare People v Revette, 48 AD3d at 887).
Also in response to the prosecutor's inquiry, one of the grand jurors stated that he hadarrested defendant at least once and that defendant had made threats to his family. Theprosecutor immediately excused this juror and instructed the remaining grand jurors todisregard and ignore the comment and to base their deliberations solely on the evidenceprovided by the sworn witnesses. While County Court found the prosecutor's efforts inthat regard to be inadequate, "the grand jury is presumed to have followed theprosecutor's curative instructions, dispelling any prejudice to . . . defendant"(People v Walton, 70 AD3d871, 873 [2010], lv denied 14 NY3d 894 [2010]; see People v Muniz, 93 AD3d871, 872 [2012], lv denied 19 NY3d 965 [2013]; People v Sandven,287 AD2d 279, 280 [2001], lv denied 97 NY2d 733 [2002]). Furthermore, giventhe strength of the evidence supporting the indictments, the grand juror's comment lackedthe potential to prejudice the grand jury's ultimate decision (see People vSutherland, 104 AD3d at 1067; People v Kidwell, 88 AD3d 1060, 1061 [2011]; People v Arbas, 85 AD3d1320, 1321 [2011], lv denied 17 NY3d 813 [2011]; People vSpencer, 289 AD2d 877, 879 [2001], lv denied 98 NY2d 655 [2002]).Accordingly, dismissal of the indictments was unwarranted.
Rose, Stein and Garry, JJ., concur. Ordered that the order is reversed, on the law,motion denied and indictments reinstated.