| People v Alexander |
| 2018 NY Slip Op 02931 [160 AD3d 1370] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Steven R. Alexander, Appellant. |
Reeve Brown PLLC, Rochester (Guy A. Talia of counsel), for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), renderedApril 14, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]),defendant contends that the prosecutor's justification instruction to the grand jury rendered theproceeding defective and thus that County Court erred in refusing to dismiss the indictment(see generally CPL 210.20 [1] [c]). Although the People correctly concede that theinstruction was erroneous, we nevertheless conclude that dismissal is not required because theerror did not impair the integrity of the grand jury proceeding with respect to the sole count of theindictment to which defendant ultimately pleaded guilty.
"A grand jury proceeding is defective . . . when[, inter alia, it] fails to conformto the requirements of [CPL] article [190] to such degree that the integrity thereof is impairedand prejudice to the defendant may result" (CPL 210.35 [5]). Consistent with the general rule that"each count in an indictment is to be treated as if it were a separate indictment" (People vArdito, 86 AD2d 144, 163 [1st Dept 1982], affd for reasons stated 58 NY2d 842[1983]), impairment and prejudice must be evaluated on a count-by-count basis (see People vKeller, 214 AD2d 825, 825-826 [3d Dept 1995]; see generally People v Montanez,90 NY2d 690, 693 [1997]). Although some errors affect the entire grand jury presentation andrequire dismissal of all counts of an indictment (see People v Connolly, 63 AD3d 1703, 1704-1705 [4th Dept2009]), other errors are more limited and affect only certain counts (see Keller, 214AD2d at 825-826).
Here, defendant pleaded guilty to criminal possession of a weapon in the second degreeunder count two of the indictment in full satisfaction of all seven counts thereof. The remainingsix counts were dismissed by operation of law (see CPL 220.30 [2]), and furtherprosecution thereon is barred (see CPL 40.20 [1]; 40.30 [1] [a]). Thus, to secure relief inthis appeal, defendant must demonstrate that the erroneous justification instruction impaired theintegrity of the grand jury proceeding and potentially prejudiced him with respect to count two(see Keller, 214 AD2d at 825-826; see generally People v Welch, 2 AD3d 1354, 1356 [4th Dept2003], lv denied 2 NY3d 747 [2004]). Any impairment or potential prejudice with respectto the other counts is academic because those counts "were ultimately dismissed" (People vChilson, 285 AD2d 733, 734 [3d Dept 2001], lv denied 97 NY2d 640 [2001],denied upon reconsideration 97 NY2d 752 [2002]; see People v Mehmood, 112 AD3d 850, 855 [2d Dept 2013]).
Defendant failed to establish that the erroneous justification instruction either impaired theintegrity of the grand jury proceeding or potentially prejudiced him with respect to count twoinasmuch as the statutory defense of justification is inapplicable to the crime of criminalpossession of a weapon, in any degree (see People v Pons, 68 NY2d 264, 265-268[1986]; People v Almodovar, 62 NY2d 126, 130-131 [1984]). Defendant's contraryassertion, i.e., that a correct justification instruction could have negated the "intent to use. . . unlawfully" element of criminal possession of a weapon in the second degree(Penal Law § 265.03 [1]), was explicitly rejected by the Court of Appeals inPons (see id. at 266-268). Defendant's claim of spillover prejudice, i.e., hissupposition that the grand jury would not have indicted him on count two had it been properlyinstructed on the justification defense applicable to other counts, is wholly speculative and doesnot satisfy his "burden to demonstrate . . . the existence of defects impairing theintegrity of the [g]rand [j]ury proceeding and giving rise to a possibility of prejudice"(Welch, 2 AD3d at 1356 [internal quotation marks omitted]). Moreover, defendant'sclaim of spillover prejudice assumes that the grand jury ignored its sworn obligation to findsufficient evidence of his "intent" to use a weapon unlawfully before returning an indictment forcriminal possession of a weapon in the second degree (§ 265.03 [1]), an elementthat cannot be negated with a defense of justification. As the Court of Appeals observed inPons, "intent to use and use of force are not the same, and justification, by the very words ofthe statute (Penal Law § 35.15), is limited to the latter" (id. at 267). Thus,the faulty justification instruction did not impair the integrity of the grand jury proceeding orpotentially prejudice defendant with respect to count two (see People v Roach, 147 AD3d 1423, 1423-1424 [4th Dept2017], lv denied 29 NY3d 1085 [2017]; People v Flores, 219 AD2d 40, 45 [1stDept 1996]).
We note that the certificate of conviction incorrectly reflects that defendant was charged incount seven of the indictment under Penal Law § 120.10 (1), and it must thereforebe amended to reflect that he was charged under section 120.10 (4). Contrary to defendant'scontention, no further correction of the certificate is required. Finally, we do not addressdefendant's remaining contentions because defense counsel withdrew them at oral argument ofthis appeal. Present—Whalen, P.J., Centra, Carni, NeMoyer and Curran, JJ.