| People v Burch |
| 2013 NY Slip Op 05326 [108 AD3d 679] |
| July 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Ryan Burch, Also Known as Ryan Houston,Respondent. |
—[*1] Salvatore C. Adamo, New York, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of theCounty Court, Rockland County (Nelson, J.), dated March 30, 2012, as granted thatbranch of the defendant's omnibus motion which was to dismiss the indictment.
Ordered that the order is reversed insofar as appealed from, on the law, that branchof the defendant's omnibus motion which was to dismiss the indictment is denied, theindictment is reinstated, and the matter is remitted to the County Court, RocklandCounty, for further proceedings.
In a grand jury proceeding, the People submitted charges, including assault in thefirst degree, gang assault in the first degree, and burglary in the first degree, with respectto the defendant and three codefendants. The prosecutor charged the grand jury as to theprinciples of accomplice liability. The initial accomplice liability charge pertained to allof the charges and all of the defendants. Subsequently, the prosecutor repeated thegeneral accomplice liability charge, and then specifically explained accomplice liabilitywith respect to only the charge of assault in the first degree as against one codefendant.The grand jury indicted the defendant and the codefendants on all of the counts that weresubmitted to it.
In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment. TheCounty Court granted that branch of the omnibus motion which was to dismiss theindictment. The court concluded that the prosecutor had given an "erroneous" grand jurycharge with respect to the principles of accomplice liability that had impaired theintegrity of the grand jury proceeding.
"The primary function of the Grand Jury in our system is to investigate crimes anddetermine whether sufficient evidence exists to accuse a citizen of a crime and subjecthim or her to criminal prosecution" (People v Calbud, Inc., 49 NY2d 389, 394[1980]). The Court of Appeals has cautioned that "[w]hen the District Attorney'sinstructions to the Grand Jury are so incomplete or misleading as to substantiallyundermine [its] essential function, it may fairly be said that the integrity of that body hasbeen impaired . . . Under such circumstances, CPL 210.35 (subd 5) as wellas our State constitutional guarantees might well require dismissal of the Grand Jury'sindictments" (People v Calbud, Inc., 49 NY2d at 396; see CPL 210.20[1] [c]; 210.35 [5]).
A grand jury proceeding is "defective," warranting dismissal of the indictment, only[*2]where the "proceeding . . . 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 of anindictment under CPL 210.35 (5) is an "exceptional remedy" that "should. . . be limited to those instances where prosecutorial wrongdoing,fraudulent conduct or errors potentially prejudice the ultimate decision reached by theGrand Jury" (People v Huston, 88 NY2d 400, 409 [1996]; see People v Wisdom, 98AD3d 241, 248 [2012], lv granted 19 NY3d 1106 [2012]; People v Thompson, 81 AD3d670, 671 [2011], lv granted 18 NY3d 998 [2012]).
CPL 190.25 (6) provides that, "[w]here necessary or appropriate, the court or thedistrict attorney, or both, must instruct the grand jury concerning the law with respect toits duties or any matter before it, and such instructions must be recorded in the minutes."Pursuant to CPL 190.25 (6), the court and the District Attorney are the "legal advisors"of the grand jury. A grand jury "need not be instructed with the same degree of precisionthat is required when a petit jury is instructed on the law" (People v Calbud, Inc.,49 NY2d at 394-395; see People v Caracciola, 78 NY2d 1021, 1022 [1991];People v Goetz, 68 NY2d 96, 115 [1986]; People v Valles, 62 NY2d 36,38 [1984]).
Here, the County Court erred in granting that branch of the defendant's omnibusmotion which was to dismiss the indictment based on the prosecutor's instructions to thegrand jurors regarding the principles of accomplice liability. Under the circumstances ofthis case, those instructions were adequate (see Penal Law § 20.00), anddid not impair the integrity of the grand jury proceeding (see People v Torres,252 AD2d 60 [1999]; People v Licausi, 98 AD2d 751 [1983]).
In light of our determination, we do not reach the remaining contentions raised by thePeople. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.