| People v Miller |
| 2013 NY Slip Op 06740 [110 AD3d 1150] |
| October 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, vChristopher A. Miller, Respondent. |
—[*1] John W. Hallett, Watertown, for respondent.
Egan Jr., J. Appeal from an order of the County Court of St. Lawrence County(Richards, J.), entered December 20, 2012, which granted defendant's motion to dismissthe indictment.
At all times relevant, defendant and Dylan Liebenow were the owners of a residencelocated in the Village of Gouverneur, St. Lawrence County. In or about April 2012,defendant—unbeknownst to Liebenow—entered into an installment landcontract for the sale of the residence and, in conjunction therewith, accepted $10,840from the purchasers. Upon discovering that defendant was not the sole owner of theproperty, the purchasers vacated the premises and demanded a return of their moneys. Inthe interim, defendant filed for chapter 7 bankruptcy but neglected to disclose, amongother things, the existence of the underlying land contract on his schedule of personalproperty.
As a result of these events, defendant was indicted and charged with grand larceny inthe third degree and offering a false instrument for filing in the first degree. Defendantthereafter moved to dismiss count 1 of the indictment (grand larceny) based upon, amongother things, prosecutorial misconduct before the grand jury and, further, soughtdismissal of count 2 of the indictment (offering a false instrument for filing) for lack ofgeographical jurisdiction. County Court granted defendant's motion, prompting thisappeal by the People.
The People conceded at oral argument that count 2 of the indictment was properly[*2]dismissed—albeit on grounds other than thosefound by County Court—and withdrew their challenge with respect thereto.Accordingly, our inquiry is now limited to whether the balance of the indictment(consisting of the grand larceny count) was properly dismissed as well.
"Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptionalremedy and should thus be limited to those instances where prosecutorial wrongdoing,fraudulent conduct or errors potentially prejudice the ultimate decision reached by the[g]rand [j]ury" (People vFarley, 107 AD3d 1295, 1295 [2013] [internal quotation marks and citationsomitted]; accord People vSutherland, 104 AD3d 1064, 1066 [2013]; see People v Ramos, 48 AD3d 984, 985 [2008], lvdenied 10 NY3d 938 [2008], cert denied 556 US 1110 [2009]). Contrary toCounty Court's finding, the record as a whole does not reveal a "pervasive mishandling"of the manner in which this case was presented to the grand jury. To the extent that theprosecutor asked leading questions or elicited hearsay testimony from the variouswitnesses, we note that "not every improper comment, elicitation of inadmissibletestimony, impermissible question or mere mistake renders an indictment defective.[Rather], the submission of some inadmissible evidence [typically] will be deemed fatalonly when the remaining evidence is insufficient to sustain the indictment" (People vHuston, 88 NY2d 400, 409 [1996] [citation omitted]; accord People v Kidwell, 88AD3d 1060, 1061 [2011]; People v Butcher, 11 AD3d 956, 958 [2004], lvdenied 3 NY3d 755 [2004]; see People v Spratley, 103 AD3d 1211, 1212 [2013], lvdenied 21 NY3d 1020 [2013]; People v Hunt, 18 AD3d 891, 893 [2005]). Inasmuch as weare satisfied—based upon our review of the grand jury minutes—that thereotherwise is legally sufficient (and admissible) evidence to sustain count 1 of theindictment, the isolated instances of hearsay testimony, which were accompanied byappropriate limiting instructions, do not warrant dismissal thereof (see People v Arbas, 85 AD3d1320, 1321 [2011], lv denied 17 NY3d 813 [2011]; People v Perry,199 AD2d 889, 893 [1993], lv denied 83 NY2d 856 [1994]). We similarly arepersuaded that the prosecutor's limited use of leading questions did not impair theintegrity of the grand jury proceeding (see People v Sutherland, 104 AD3d at1067; People v Perry, 199 AD2d at 894; cf. People v Tatro, 53 AD3d 781, 784 [2008], lvdenied 11 NY3d 835 [2008]). Accordingly, County Court erred in concluding thatthe indictment was subject to dismissal under CPL 210.35 (5).
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, by reversing so much thereof as granted defendant's motion to dismiss count1 of the indictment; motion denied to that extent and said count reinstated; and, as somodified, affirmed.