| People v Grant |
| 2014 NY Slip Op 00531 [113 AD3d 875] |
| January 29, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Duane Grant, Respondent. |
—[*1] Leon H. Tracy, Jericho, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of theCounty Court, Nassau County (Ayres, J.), dated April 30, 2010, as, upon reargument,adhered to its original determination in an order of the same court dated October 16,2009, which, upon reviewing the grand jury minutes pursuant to a stipulation in lieu ofmotions, dismissed the indictment on the ground that the grand jury proceeding wasdefective within the meaning of CPL 210.35 (5), with leave to re-present the matter to anew grand jury.
Ordered that the order is affirmed insofar as appealed from.
A grand jury indicted the defendant on counts of criminal possession of a weapon inthe second degree, criminal possession of a weapon in the third degree, and criminalpossession of a weapon in the fourth degree. In an order dated October 16, 2009, theCounty Court, upon reviewing the grand jury minutes pursuant to a stipulation in lieu ofmotions, dismissed the indictment, with leave to re-present the matter to a new grandjury. The court concluded that the grand jury proceeding was defective within themeaning of CPL 210.35 (5) based on the prosecutor's failure to instruct the grand jury onthe defense of temporary and lawful possession of a weapon. Thereafter, in an orderdated April 30, 2010, the same court, upon reargument, adhered to its determination inthe order dated October 16, 2009.
Contrary to the People's contention, the County Court did not err in dismissing theindictment. "[A] prosecutor should instruct the Grand Jury on any complete defensesupported by the evidence which has the potential for eliminating a needless orunfounded prosecution" (People v Wilson, 228 AD2d 708, 709 [1996] [internalquotation marks omitted]; see People v Mitchell, 82 NY2d 509, 514 [1993];People v Lancaster, 69 NY2d 20, 26-27 [1986], cert denied 480 US 922[1987]; People v Valles, 62 NY2d 36, 38 [1984]). Under the circumstances ofthis case, an instruction on the defense of temporary and lawful possession waswarranted. The prosecutor's failure to instruct the grand jury on that defense impaired theintegrity of that body (see CPL 210.35 [5]; cf. People v Malan-Pomaeyna, 72 AD3d 988 [2010]; People v Samuels, 12 AD3d695, 698-699 [2004]). Skelos, J.P., Balkin, Lott and Hinds-Radix, JJ., concur.