| People v Elioff |
| 2013 NY Slip Op 06478 [110 AD3d 1477] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v JosephElioff, Respondent. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-respondent.
Appeal from an order of the Onondaga County Court (Donald E. Todd, A.J.), datedAugust 7, 2012. The order, insofar as appealed from, granted without prejudice that partof the motion of defendant seeking to dismiss the indictment on the grounds of defectivegrand jury proceedings.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, that part of defendant's omnibus motion seeking to dismiss the indictment isdenied, the indictment is reinstated and the matter is remitted to Onondaga County Courtfor further proceedings on the indictment.
Memorandum: On appeal from an order granting that part of defendant's omnibusmotion seeking to dismiss the indictment pursuant to CPL 210.35 (5), the People contendthat County Court erred in determining that the integrity of the grand jury proceedingshad been compromised by prosecutorial misconduct and in dismissing the indictment onthat ground. We agree.
" '[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and islimited to instances of prosecutorial misconduct, fraudulent conduct or errors whichpotentially prejudice 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. Typically, the submission ofsome inadmissible evidence will be deemed fatal only when the remaining evidence isinsufficient to sustain the indictment" (Huston, 88 NY2d at 409; see People v Jeffery, 70 AD3d1512, 1513 [2010]; Peoplev Butcher, 11 AD3d 956, 958 [2004], lv denied 3 NY3d 755 [2004]).
Here, the prosecutor was required to establish that the four-year-old victim couldprovide unsworn testimony, but failed to do so (cf. People v Raymond, 60 AD3d 1388, 1388 [2009], lvdenied 12 NY3d 919 [2009]). The prosecutor also violated the unsworn witness ruleduring an attempt to persuade the child to testify about the incident (see generallyPeople v Paperno, 54 NY2d 294, 300-301 [1981]). Nevertheless, we conclude thatthe prosecutor did not thereby engage in conduct that was [*2]fraudulent in nature, nor was the prosecutor's conduct soegregious as to impair the integrity of the grand jury proceedings (see People v Conklin, 105AD3d 1387, 1389 [2013]; People v Carey, 241 AD2d 748, 751 [1997],lv denied 90 NY2d 1010 [1997]; cf. Huston, 88 NY2d at 409-410). Wefurther conclude that the remaining evidence is legally sufficient to sustain theindictment. Contrary to defendant's contention, the lack of direct testimony of penetrationdoes not compel the conclusion that the evidence is legally insufficient to support thecount of the indictment charging him with predatory sexual assault against a child (PenalLaw § 130.96), insofar as that count is based upon commission of the crime ofrape in the first degree (§ 130.35 [2]). Although we disregard the evidenceprovided by the victim due to the prosecutor's failure to establish that the victim had thecapacity to provide unsworn testimony, we note that "[t]he girl's inability to testify withrespect to penetration is not . . . conclusive . . . [where, ashere,] other evidence existed from which that fact could be established" (People vCarroll, 95 NY2d 375, 383 [2000]; see People v McDade, 64 AD3d 884, 886-887 [2009],affd 14 NY3d 760 [2010]). Here, witnesses testified that the victim made aprompt complaint, that her vaginal area was bruised and had abrasions and a tear, andthat semen with DNA consistent with defendant's DNA was found in her underwear.Inasmuch as the admissible evidence is legally sufficient with respect to all three counts,the court erred in dismissing the indictment. Present—Smith, J.P., Fahey, Sconiers,Valentino and Whalen, JJ.