| People v Henriquez |
| 2019 NY Slip Op 04503 [173 AD3d 1268] |
| June 6, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant, v Yohani Henriquez, Also Known as Yovani Henriquez,Respondent. |
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forappellant.
Yohani Henriquez, Attica, respondent pro se.
Aarons, J. Appeal from an order of the County Court of Clinton County (Lawliss, J.), enteredMay 24, 2017, which granted defendant's motion to dismiss the indictment.
Defendant, an inmate at Clinton Correctional Facility, was charged by indictment withcriminal possession of a controlled substance in the fifth degree, criminal possession of acontrolled substance in the seventh degree and promoting prison contraband in the first degree(two counts). In his omnibus motion, defendant, among other things, moved to dismiss theindictment. After reviewing the grand jury minutes, County Court granted the motion anddismissed the indictment under CPL 210.35 (5) on the basis that the integrity of the grand juryproceeding had been impaired due to the People's inadequate inquiry as to the potential bias by agrand juror. The People appeal.
"Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy andshould thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct orerrors potentially prejudice the ultimate decision reached by the grand jury" (People v Sutherland, 104 AD3d1064, 1066 [2013] [internal quotation marks, brackets and citations omitted]; see Peoplev Spencer, 289 AD2d 877, 878 [2001], lv denied 98 NY2d 655 [2002]). "Thelikelihood of prejudice turns on the particular facts of each case, including the weight and natureof the admissible proof adduced to support the indictment and the degree of inappropriateprosecutorial influence or bias" (People v Huston, 88 NY2d 400, 409 [1996]). Prejudicemay arise based upon a close relationship between a grand juror and a witness (see People v Wilkinson, 166 AD3d1396, 1397 [2018], lv denied 32 NY3d 1179 [2019]).
The record discloses that one of the grand jurors knew one of the testifying witnesses. Thegrand juror, who used to be a teacher and had been retired for 10 years, stated that the witnesswas a former student and that he had not seen the witness since the student left his class. Thegrand juror was then asked whether there was anything else that would affect his ability to be fairand impartial, to which he responded, "No." In our view, the relationship between the grand jurorand the witness was not a close relationship so as to give rise to the possibility of prejudice (see People v Richardson, 132 AD3d1239, 1241 [2015]). Furthermore, although the prosecutor's voir dire of the grand juror wasbrief, we are satisfied that, based upon his unequivocal response thereto, the grand juror'simpartiality was not compromised (see People v Wilkinson, 166 AD3d at 1398; People v Malloy, 166 AD3d 1302,1303-1304 [2018], lv granted 32 NY3d 1180 [2019]; People v Farley, 107 AD3d 1295, 1296 [2013], lv denied 21NY3d 1073 [2013]). We also note that the grand jurors unanimously voted to indict defendantand, therefore, it is speculative to conclude that the grand juror at issue might have influenced theother grand jurors (see People v Wilkinson, 166 AD3d at 1398). Additionally, our reviewof the grand jury minutes reveals that legally sufficient evidence was presented to the grand jury(see People v Arbas, 85 AD3d1320, 1321 [2011], lv denied 17 NY3d 813 [2011]). Accordingly, we find that theexceptional and drastic remedy of dismissal of the indictment was not warranted under thecircumstances of this case, and County Court erred in granting defendant's motion.[FN*]
Garry, P.J., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the order is reversed, onthe law, motion denied, and indictment reinstated.
Footnote *:To the extent that defendantcontends that he was deprived of his right to testify before the grand jury, such contention iswaived given that defendant did not seek such relief in a timely fashion (see CPL 190.50[5] [c]; People v Cherry, 149 AD3d1346, 1346 [2017], lv denied 29 NY3d 1124 [2017]).