| People v Roblee |
| 2015 NY Slip Op 02393 [126 AD3d 1429] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJon N. Roblee, Appellant. |
Motion for reargument of the appeal is granted to the extentthat, upon reargument, the memorandum and order entered November 14, 2014 (122AD3d 1261), is amended by deleting the second sentence of the fourth paragraph of thememorandum and substituting the following: "We reject that contention. Addressing firstdefendant's claims concerning the number of grand jurors, we note that, pursuant toCriminal Procedure Law, a grand jury proceeding must be conducted before at least 16grand jurors, 12 of whom must concur in the finding of the indictment (see CPL210.35 [2], [3]; see also CPL 190.25 [1]; People v Grimes, 115 AD3d 1194, 1195 [2014], lvdenied 24 NY3d 1084 [2014]; People v Eun Sil Jang, 17 AD3d 693, 694 [2005]). Here,the grand jury minutes establish that 19 grand jurors voted to indict defendant, and 1voted not to indict him. We therefore perceive no violation of the above statutes."
With respect to defendant's claim concerning the grand jury instructions, it is wellestablished that "[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 Burch, 108 AD3d679, 680 [2013], lv denied 22 NY3d 1087 [2014]). Furthermore,"[d]ismissal of an indictment 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 the[g]rand [j]ury" (id. [internal quotation marks omitted]). Here, we conclude thatthe prosecutor provided the grand jurors " 'with enough information to enable[them] intelligently to decide whether a crime ha[d] been committed and to determinewhether there exist[ed] legally sufficient evidence to establish the material elements ofthe crime' " (People v Wooten, 283 AD2d 931, 932 [2001], lvdenied 96 NY2d 943 [2001]). Present—Smith, J.P., Lindley, Valentino andDeJoseph, JJ.