| People v Baptiste |
| 2018 NY Slip Op 02798 [160 AD3d 976] |
| April 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marlon Baptiste, Appellant. |
Paul Skip Laisure, New York, NY (White & Case LLP [Dana Foster], of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A.Gary, J.), rendered September 27, 2013, convicting him of assault in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At the grand jury proceeding which resulted in the defendant's indictment, the complainanttestified that the defendant assaulted him with a box cutter or knife outside the home of thedefendant's girlfriend. Exercising his right to testify before the grand jury (see CPL190.50 [5]), the defendant testified that the complainant was the initial aggressor by cutting himon the neck with a knife, and that he caused the complainant's injuries in self-defense. Thedefendant requested that the grand jury hear from three eyewitnesses, including his girlfriend andher sister (hereinafter the sister). The defendant informed the grand jury that his girlfriend mayhave witnessed the altercation from a window, and that the sister saw most or all of the incidentwhile she was signing for a package outside the home.
The prosecutor proffered the defendant's proposed witnesses to the grand jury, which decidedto hear from the defendant's girlfriend, but declined to hear from the two other witnesses. Theprosecutor's proffer of the sister as a witness referenced the defendant's testimony that the sisterwas present outside the home signing for a package. The grand jury was charged on the defenseof justification and thereafter indicted the defendant on various assault charges. The SupremeCourt denied that branch of the defendant's omnibus motion which was to dismiss the indictmentpursuant to CPL 210.20 based on the failure of the grand jury to hear from the sister.
At the trial, the sister testified during the defense case that she witnessed the entire event, thatthe complainant was the initial aggressor, and that the defendant disarmed the complainantduring the altercation. She further testified that she had spoken with the grand jury prosecutor,but did not remember his questions or her answers. After both sides rested, the defendantrenewed his motion to dismiss the indictment, arguing that the prosecutor's failure to inform thegrand jury that the sister was the sole eyewitness to the entire event, and would testify that the[*2]complainant was the initial aggressor, impaired the integrityof the proceeding. The Supreme Court denied the defendant's renewed motion. The jurythereafter convicted the defendant of assault in the second degree.
An indictment should be dismissed where the grand jury proceeding is defective such that it"fails to conform to the requirements of article one hundred ninety [of the Criminal ProcedureLaw] to such degree that the integrity thereof is impaired and prejudice to the defendant mayresult" (CPL 210.35 [5]; see CPL 210.20 [1] [c]; People v Thompson, 22 NY3d 687, 699 [2014]). "The 'exceptionalremedy of dismissal' is available in 'rare cases' of prosecutorial misconduct upon a showing that,in the absence of the complained-of misconduct, the grand jury might have decided not to indictthe defendant" (People v Thompson, 22 NY3d at 699, quoting People v Huston,88 NY2d 400, 409 [1996]; see People v Darby, 75 NY2d 449, 455 [1990]; People v Jackson, 143 AD3d 404[2016]). In general, this demanding test is only met where the prosecutor engaged in an overallpattern of bias and misconduct that is pervasive and typically willful (see People vThompson, 22 NY3d at 699; People v Huston, 88 NY2d at 409-410). "[T]hestatutory test, which does not turn on mere flaw, error or skewing . . . is very preciseand very high" (People v Darby, 75 NY2d at 455).
Pursuant to CPL 190.50, a defendant may request the grand jury to cause a person designatedby him to be called as a witness in a grand jury proceeding. "The grand jury may as a matter ofdiscretion grant such request and cause such witness to be called" (CPL 190.50 [6]). The grandjury has great discretion in determining what evidence to hear and has the absolute right to rejectthe defendant's request that it hear from a witness (see People v Johnson, 282 AD2d 309,310 [2001]).
Here, the Supreme Court properly determined that the prosecutor's proffer of the sister as awitness did not impair the integrity of the grand jury proceeding and did not result in possibleprejudice to the defendant. The defendant informed the grand jury of the relevance of the sister asa witness, and the grand jury "could have requested the witness's testimony if it had wished to doso" (People v Johnson, 289 AD2d 1008, 1009 [2001]). The prosecutor's proffer madeclear that the grand jury had the discretion to request the sister's testimony (see People vThompson, 22 NY3d at 699). The prosecutor's proffer of the sister "neither suppresseddefendant's request to call the witness nor stripped the grand jury of its discretion to grant or denythat request" (id. at 699; see People v Johnson, 282 AD2d at 311; cf. People v Hill, 5 NY3d 772, 773[2005]). Further, the defendant presented his justification defense to the grand jury, and ajustification charge was given (see People v Alicea, 276 AD2d 915, 916 [2000]; cf. People v Samuels, 12 AD3d695, 698-699 [2004]). Accordingly, the court properly denied the defendant's renewedmotion to dismiss the indictment. Dillon, J.P., Miller, Barros and Christopher, JJ., concur.