People of the State of New York, v. Bruce R. Mead, Defendant. (2024)

Defendant Bruce R. Mead, by the above-entitled Indictment, is charged with one count of Murder in the Second Degree in violation of Penal Law § 125.25(1) and one count of Manslaughter in the Second Degree in violation of Penal Law § 120.15(1). The Indictment alleges that on December 19, 2022, Defendant either intentionally killed his brother, Zachary Moore, (Count 1, Murder in the Second Degree) or recklessly killed his brother (Count 2, Manslaughter in the Second Degree). Defendant appeared before this Court with counsel (Madeline Weiss, Esq.) on December 12, 2023, for arraignment upon the indictment and entered a not guilty plea to each count. The People are represented by the Tompkins County District Attorney (A.D.A. Daniel Johnson, Esq., appearing). By written Decision and Order dated January 22, 2024, this Court remanded the Defendant without bail. Defendant is presently serving a 2.5 to 5 years indeterminate sentence for his conviction by guilty plea to Criminal Possession of a Weapon in the Third Degree pursuant to a plea bargain agreement entered into with the People. Defendant's earliest release date on parole is on or about September 26th of this year.

Defendant, through counsel, filed Omnibus motions on January 31, 2024, as amended on February 21, 2024, and the People filed their opposition response on February 23, 2024. Defendant requests that the Court inspect the grand jury proceedings and further moves to dismiss the indictment upon the grounds of legal insufficiency (CPL § 210.30) and defective grand jury proceedings (CPL § 210.35). Defendant further moves for Huntley, Sandoval, and Molineux/Ventimiglia hearings.

This Court, in its earlier January 22, 2024 bail decision, discussed the evidence the People presented to the grand jury. However, now that Defendant moves for dismissal of the indictment upon alleged legal insufficiency and defective grand jury proceedings, the Court will repeat its factual findings with respect to the evidence which the People presented to the Grand Jury on November 16, 2023. The evidence before the Grand Jury established that the Defendant's mother (D.M.) is the mother of both Defendant, age, 29, and Defendant's half- bother, Zacharias Moore, age, 38. On December 19, 2022, D.M. and Defendant were residing together in her third-floor Chestnut Hill apartment, Apt. # H-31. Zacharias Moore resided in a different apartment on the second floor of the same building. At about 11:23 a.m. on December 19, 2002, D.M. pulled into a parking space in the parking lot of her Chestnut Hill apartment building. D.M. was driving Zacharias Moore back from Cayuga Addiction Recovery Services. D.M. testified that, "Zach was very angry," and "I'd never seen him that upset before." According to D.M., Mr. Moore's girlfriend had died in her sleep a day earlier, and Mr. Moore was upset that Defendant had "said some unkind" words to Mr. Moore about her. D.M. told Zacharias Moore that he needed to ignore Defendant's comments. According to D.M., and as corroborated by the Chestnut Hill surveillance video, Zacharias Moore got out of the passenger's side of D.M.'s vehicle, prevented her from exiting the driver's side by holding the door shut with his hands, and spat on her window. D.M. testified that Mr. Moore "said that he was going to go in and have a fight with [Bruce]." Chestnut Hill Apartments surveillance video entered into evidence corroborated D.M.'s account of the events as she described them to the Grand Jury. Surveillance video shows Mr. Moore walking away from his mother's car and entering the exterior entranceway of the apartment building. Surveillance video of the interior of the entranceway further shows Mr. Moore grab a fire extinguisher off the wall and then proceed up the stairwell (11:24:35 a.m.). At 11:26:43 a.m. Mr. Moore is seen on the same surveillance camera stumbling back down the stairwell whereupon he sat on the first landing while clutching his visibly bleeding chest with his left hand. D.M. entered the building at about the same time and called 911. Law enforcement and EMTs responded within about 10 minutes and Mr. Moore was taken by ambulance but succumbed to his injuries shortly after his arrival to the hospital. Defendant was located by law enforcement at the apartment building and taken into custody without incident.

Surveillance video did not capture what transpired inside Defendant's third floor apartment. However, the People did call before the Grand Jury a witness (J.S.) who was present for most of the altercation that occurred within Defendant's apartment between Defendant and his half-brother, Mr. Moore. According to J.S., he knew both Defendant and Mr. Moore, and he was visiting Defendant on December 19, 2022. J.S. testified that he was alone in Defendant's bathroom when he heard loud thumping. Upon exiting the bathroom, J.S. observed that Mr. Moore was on top of Defendant in the living room. J.S. testified that Mr. Moore was hitting the Defendant and, "Bruce was trying to squirm and fight his way out of it." J.S. testified that Mr. Moore was holding the fire extinguisher and the Defendant was holding a knife. J.S. described that fumes were coming out of the fire extinguisher. J.S. further detailed that, "Zach[ ] kept trying to corner Bruce, and Bruce kept trying to defend himself." J.S. further described that "they were both striking each other." J.S. testified that he saw Zacharias Moore strike Defendant on "the face, on the -- on the arms, anywhere he could." J.S. testified that Mr. Moore was striking Defendant with his hands and the fire extinguisher. J.S. further testified that Defendant was trying to strike Mr. Moore with a knife. J.S. corroborated that Mr. Moore "seemed pissed off about Bruce running his mouth about his deceased -- his son' s mom." J.S. observed that Bruce "had the knife, he was, you know, trying to get his way out of Zach pinning him down and hitting him." J.S. testified he never actually saw Defendant stab Moore in the chest.

The pathologist who performed Mr. Moore's autopsy testified that Mr. Moore had six stab wounds to his chest area and three to the back. One of the stab wounds, the wound to Mr. Moore's right atrium, was the fatal stab wound which resulted in severe blood loss and eventual cardiac arrest. The pathologist also testified that the toxicology analysis of Mr. Moore's blood revealed the presence of Alprazolam, Clonazepam, Methadone, Ritalin, Gabapentin, Fentanyl, and Benzoylecgonine, a breakdown product of cocaine.

Law enforcement documented that Defendant suffered injuries during the altercation. Defendant was documented to have a "goose egg" contusion on his head, scratches on both sides of his neck, an abrasion in front of his left ear, and two abdomen wounds.

Based upon the Court's review of all of the grand jury evidence, there does not appear to be any real issue with respect to the fact that Defendant did in fact stab Mr. Moore in the chest at some point during the altercation between him and Mr. Moore in Defendant's apartment. Law enforcement recovered both the fire extinguisher and the kitchen steak knife inside the apartment. This case is not a whodunnit. Rather this case -- this trial -- will be about self- defense, or "justification," as the concept is known under New York Law. See, NY Penal Law § 35.00 et. seq. Both the People and Defendant's counsel at arraignment acknowledged that this case will be about the issue of justification, and that issue will be decided by a jury.

Defendant moves to dismiss both counts of the indictment alleging legal insufficiency. CPL § 210.20 and § 230. A Grand Jury indictment is authorized when the evidence before it is legally sufficient to establish that such person committed a crime and competent and admissible evidence provides reasonable cause to believe that such person committed the crime. CPL § 190.65(1). The standard of review, upon a motion to dismiss for legal insufficiency, is whether the evidence before the Grand Jury, if unexplained and uncontradicted, would warrant a conviction by a trial jury. People v. Pelchat, 62 NY2d 97 (1984). " 'Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of the offense charged and the Defendant's commission thereof; except when corroboration required by law is absent." CPL § 70.10(1). "Reasonable cause to believe that a person has committed an offense" exists when evidence or information, which appears reliable, discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." NY CPL § 70.10(2). Therefore, the evidence before a Grand Jury, when viewed "in the light most favorable to the prosecution," is legally sufficient if there is competent evidence, which, if accepted as true, establishes every element of the offense charged or a lesser included offense and the Defendant's commission thereof. People v. Swamp, 84 NY2d 725, 730 (1995). See, People v. Jennings, 69 NY2d 103, 1114 (1986).

When examining the evidence in the light most favorable to the People, Defendant Mead's use of a steak knife to stab his brother multiple times could be legally sufficient evidence of either an intentional killing (Murder in the Second Degree) or reckless killing (Manslaughter in the First Degree). However, this Court need not and will not engage in a more detailed legal sufficiency analysis at this juncture, since this indictment, as analyzed more fully below, must be dismissed due to the People's failure to provide complete, accurate and non-misleading legal instructions to this particular Grand Jury.

CPL § 210.20(1)(c) provides that the Court may dismiss an indictment if the "grand jury proceeding was defective, within the meaning of section § 210.35." A grand jury proceeding is defective when it "fails to conform to the requirements of [CPL Article 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result." CPL § 210.35(5). A defendant is not required to establish "actual prejudice" if a grand jury proceeding is defective, rather a defendant merely needs to make the requisite showing of "the possibility of prejudice (emphasis added)." People v. DiFalco, 44 NY2d 482, 487 (1978); People v. Darby, 75 NY2d 449, 454 (1990). The "exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice." People v. Huston, 88 NY2d 400, 409 (1996). Grand jury proceedings enjoy a "presumption of regularity which is the challenger's burden to overcome." People v. Nash, 69 AD3d 1113, 1114 (3rd Dept. 2010). Dismissal of an indictment under CPL § 210.35(5) is "limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury." Huston, at 409.

The Court finds upon inspection of the transcripts, attendance and voting sheets that this Grand Jury was legally constituted as contemplated by CPL § 210.35(1). The presentation of this case occurred on November 16, 2023, and was made to twenty (20) Grand Jury members who were continuously present and twenty Grand Jurors voted upon both counts of the indictment. At least twelve (12) Grand Jurors voted in favor of each count of the indictment. This Grand Jury was therefore legally constituted. CPL § 210.35.

Defendant's counsel requested that the "Court consider whether the district attorney properly instructed the grand jury on a wholly exculpatory defense-specifically, justification." M. Weiss, Feb. 21, 2024 , affirmation at par. 9. The People, in their response, assert that the "grand jury was properly instructed regarding self-defense in this case." D. Johnson, Feb. 23, 2024, Response at 3. Although discovery reform now places Grand Jury transcripts into the hands of the defense shortly after arraignment, for reasons this Court cannot discern, the legal instructions a prosecutor is required to provide to the grand jurors are still cloaked in an archaic veil of secrecy. Defense counsel can only engage in a guessing game and merely make generalized requests to the Court to inspect the legal instructions to ensure that such instructions were proper and did not potentially prejudice a defendant. Defense counsel, in requesting that the Court determine and examine whether the People properly charged justification (i.e. self-defense), is obviously referring to the complete "justification" defense statutorily defined in Penal Law § 35.15(2), which provides under what circumstances a person may use deadly force against another in self-defense, and consequently not face criminal culpability. The People, as they acknowledge, and as the Court upon inspection of these secret legal instructions can confirm, did provide this Grand Jury with a justification charge pursuant to Penal Law § 35.15(2). Penal Law § 35.15(2), in relevant part, provides:

A person may not use deadly physical force upon another person [ ] unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor.

While it is true that a Grand Jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law," and in most cases the prosecutor's obligations will be met by "reading to the Grand Jury from the appropriate sections of the Penal Law," there are situations when the "instructions to the Grand Jury are so misleading that the indictment could not be permitted to stand even though it is supported by legally sufficient evidence." People v. Calbud, Inc., 49 NY2d 389, 394-395 (1980).

The "prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done" and while a prosecutor "need not instruct the Grand Jury as to every conceivable defense suggested by the evidence," a prosecutor is required to instruct the Grand Jury with any "complete" defenses which the evidence will support. People v. Lancaster, 69 NY2d 20, 26 (1986). The requirement that a Grand Jury be instructed on any applicable complete defenses "assist(s) the Grand Jury in its function of protecting citizens from unfounded prosecutions, and consideration of such defenses therefore ordinarily rests within that body's proper domain." Id., at 27. "Accordingly, where evidence establishes a potential defense of justification, [a] prosecution may be needless and the Grand Jury should be charged on the law regarding that potential defense because its consideration is properly within that body's province." Id., at 27-28, citing People v. Valles, 62 NY2d 36. See, People v. Moore, 132 AD2d 776, 778 (3rd Dept. 1987).

"In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant." People v. Samuels, 12 AD3d 695, 698 (2nd Dept. 2004). [If a prosecutor fails to instruct the grand jury on a justification] defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL 210.35[5]; People v. Valles, 62 NY2d 36, 38; People v. Calbud, Inc., 49 NY2d 389, 395—396). Where the evidence before the grand jury supports it, the charge on justification must be given (cf. People v. Mitchell, 82 NY2d 509, 514—515; People v. Lancaster, 69 NY2d 20, 27—28, cert. denied 480 U.S. 922; People v. Torres, 252 AD2d 60, 65)." People v. Samuels, 12 AD3d 695, 698 (2nd Dept. 2004). "[W]here the evidence suggests that a complete defense such as justification may be present, the prosecutor must [also] charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution." People v. Waddell, 78 AD3d 1325, 1326 (3rd. Dept. 2010), lv denied 16 NY3d 837 (2011). Here, the People failed to provide the Grand Jurors with the Penal Law § 35.20(3) complete justification defense (i.e., use of deadly force to prevent or terminate a burglary or attempted burglary) instruction, which is separate and distinct for the Penal Law § 35.15(2) defense. Penal Law § 35.20(3) provides:

A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

The legislative history of Penal Law 35.20(3) makes it clear that this defense "was intended to protect those individuals who suddenly find themselves the victim of an intrusion upon their premises by one bent on a criminal end." People v. Godfrey, 80 NY2d 860 (1992), quoting, Legislative Mem., at 2, Bill Jacket, L.1968, ch. 73. The Penal Law § 35.20(3) justification defense is a complete and ordinary defense, not an affirmative defense, and consequently, the People bear the burden of proof, and must disprove such justification defense beyond a reasonable doubt. When viewing the evidence in the light most favorable to the Defendant, there is certainly a reasonable view of the evidence presented to the Grand Jury that the decedent, Zacharias Moore, unlawfully entered Defendant Mead's apartment with the the intent to assault Defendant with a fire extinguisher and that the Defendant actually and reasonably believed his use of a steak knife in order to repel Moore was necessary to prevent or terminate Moore's burglary of Defendant's dwelling. Under even a neutral view of the evidence, the People were required to provide the Grand Jury with the Penal Law § 35.20(3) justification complete defense instruction.

In People v. Ball, 175 AD3d 987 (4th Dept. 2019), aff'd, 35 NY3d 1009 (2020), the Fourth Department, in affirming a trial court's dismissal of an indictment, was confronted with the identical legal issue concerning the prosecutor's omission of the Penal Law § 35.20(3) justification instruction. In Ball, the defendant was also charged with murder in the second degree and manslaughter in the first degree. In Ball, the defendant was in his own home with his wife and his brother-in-law, the decedent, who was a temporary guest. At some point in the evening the decedent attacked the defendant, placed him in a headlock and threatened to kill him. Defendant's wife managed to get the decedent to stop attacking her husband, whereupon she escorted her brother outside and told him to stay in her car. Despite being told by his sister to remain outside, the decedent stepped around her and went back inside the house, whereupon the decedent was shot and killed inside the home by the defendant who had by now retrieved a firearm. The Fourth Department explained that the prosecutor's failure to provide the Penal Law § 35.20(3)] instruction impaired the integrity of the grand jury proceeding and such "error was not cured by the instruction regarding the justification defense under Penal Law § 35.15(emphasis added)." Id., at 988-989. See, People v. Fagan, 24 AD3d 1185, 1186-1187 (4th Dept. 2005) (Defendant's assault conviction reversed where trial court failed to charge the Penal Law § 35.20(3) defense where the victim unlawfully entered the Defendant's residence swinging a two-by-four at the Defendant and consequently there was "a reasonable view of the evidence that the victim entered and remained inside defendant's house with the intent to commit a crime, i.e., an assault" and the victim's conduct supported "the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary"). See also, People v. Deis, 79 NY2d 717 (2002) (evidence must be viewed in light most favorable to Defendant when determining whether a reasonable view of the evidence exists warranting a justification charge pursuant to Penal Law § 35.20).

In People v. Rosario, 173 Misc 2d 641, 643 (Bronx County Court, 1997), in dismissing an attempted murder and assault indictment where the prosecutor had charged Penal Law § 35.15(2), but had failed to charge § 35.20(3), the trial court noted that the "distinction between the two [defenses] may be critical, since the defendant may legally use deadly physical force to terminate a burglary attempt even though the victim has threatened or used only physical force, and not deadly physical force, to enter the premises or to commit the crime therein."

Dismissal of this indictment is not only mandated due to the People's failure to instruct the Grand Jury concerning the Penal Law § 35.20(3) justification complete defense, but dismissal is also required upon the separate ground that the prosecutor's legal instructions with respect to the Penal Law § 35.15(2) justification defense were "so misleading or incomplete as to substantially undermine the integrity of the proceedings." People v. Caracciola, 78 NY2d 1021, 1022 (1991). Penal Law 35.15(2) provides that an actor may use deadly force against another if he or she "reasonably believes that such other person is using or about to use deadly physical force" and further that "the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor (emphasis added). In other words, if someone is attacked in one's own dwelling, that person need not retreat but may use reasonable force to repel such attack. Indeed, the Penal Law and its common-law history reflect the concept behind the castle doctrine that inside one's home a person is in a unique haven from the outside world. People v. Aiken, 4 NY3d 324, 330 (2005)

In this case, the prosecutor read the following Penal Law 35.15(2) instruction to the Grand Jurors:

In certain circumstances, our law allows that a person is legally justified in using force to defend him or herself. The defendant has no burden to establish that he was justified. Rather, the evidence must establish probable cause or reasonable cause to believe that the defendant was not justified. Under our law, a person may use deadly physical force upon another individual when, and to the extent that, he reasonably believes it to be necessary to defend himself from what he reasonably believes to be the use or imminent use of deadly physical force by such individual. Deadly physical force means physical force, which under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. Serious physical injury means impairment of a person' s physical condition, which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of heath, or protracted loss or impairment of the function of any bodily organ. The determination of whether a person reasonably believes deadly physical force may be necessary to defend himself from what he reasonably believes to be the use or imminent use of deadly physical force by another individual requires the application of a two-part test. That test applies to this case in the following way: First, Bruce Mead must've actually believed that Zacharias Moore was using or was about to use deadly physical force against him, and that the defendant, Mr. Mead' s, only use of deadly physical force was necessary to defend himself from it; and second, a reasonable person in Mr. Mead' s position, knowing what he knew and being in the same circumstances, would've had those same beliefs. Thus, under our law of justification, it is not sufficient that the defendant honestly believed in his own mind that he was faced with defending himself against the use of imminent -- excuse me, the imminent use of deadly physical force. An honest belief, no matter how genuine or sincere, may yet be unreasonable. To have been justified in the use of deadly physical force, the defendant must have honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of such force by Zacharias Moore, and a reasonable person in Mr. Mead' s position, knowing what he knew and being in the same circumstances, would've believed that too. On the question of whether Mr. Mead did reasonably believe that deadly physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of such force by Zacharias Moore, it does not matter that Mr. Mead was or may have been mistaken in his belief; provided that such belief was both honestly held and reasonable. Grand Jury Transcript at 154-156.

The prosecutor further added:

Notwithstanding the rules I've just explained, the defendant would not be justified in using deadly physical force under the following circumstances. And I'll explain this one term, which is initial aggressor. First person who uses, or threatens the imminent use of, deadly physical force. The actual striking of the first blow or inflicting of the first wound, however, does not necessarily determine who was the initial aggressor. A person who reasonably believes that another is about to use deadly physical force upon him or her need not wait until he or she is struck or wounded. He or she may, in such circumstances, be the first to use deadly physical force, so long as he or she reasonably believed it was about to be used against him or herself. He or she is then not considered to be the initial aggressor, even though he strike -- he or she strike -- struck the first blow or inflicted the first wound. If a person initially uses or threatens the use of non-deadly physical force against another who, in response, uses or threatens the imminent use of deadly physical force, then that person who first used or threatened the imminent use of deadly physical force is the initial aggressor. Finally, with regards to the justification, the defendant would not be justified if the deadly physical force involved was a product of a combat by agreement not specifically authorized by law. Grand Jury Transcript at 154-156.

In other words, the prosecutor charged this Grand Jury with the "initial aggressor" and "combat by agreement" exceptions to the defense of justification in the use of deadly force in defense of a person. However, there is simply no "reasonable view of the evidence" presented to this Grand Jury that Defendant Mead could have been the initial aggressor. The undisputed evidence presented by the People to the Grand Jury unambiguously established that Zacharias Moore was angry and intent upon attacking Defendant, over the protestation of their mother. Moore grabbed a metal fire extinguisher off the stairwell wall and unlawfully entered Defendant's apartment with the intent to attack him. J.S., the friend of both Defendant and Moore, who had just come out of the bathroom, testified that he observed Moore on top of Defendant, striking the Defendant on "the face, on the -- on the arms, anywhere he could." with the fire extinguisher, while "Bruce kept trying to defend himself." Defendant's mother's testimony that Moore was upset because he believed Defendant had made insulting statements about Moore's deceased paramour, as a matter of law, cannot constitute a physical threat and cannot make Defendant an initial aggressor. The model Penal Law § 35.15(2) CJI instruction states that "Initial aggressor" means the first person who uses, or threatens the imminent use of, deadly physical force." The model CJI § 35.15 charge clarifies that "Arguing, using abusive language, calling a person names, or the like, unaccompanied by physical threats or acts, does not make a person an initial aggressor and does not justify physical force." In order for the "initial aggressor" instruction to be charged to the Grand Jurors, there must exist "a reasonable view of the evidence that [Defendant] was the initial aggressor." People v. Valentin, 29 NY3d 57, 61 (2017). There is simply no reasonable view of the evidence presented under which Defendant could have been the initial aggressor during this encounter. The fact that the Grand Jurors were nonetheless instructed to consider whether the Defendant was the initial aggressor was consequently incorrect, inaccurate and misleading. Additionally, the prosecutor's instruction on "combat by agreement" is wholly inapplicable, although such statutory recitation would probably only amount to harmless error if such had been the only irregularity. Here, the prosecutor's inapplicable instruction concerning initial aggressor instruction placed a question before the Grand Jurors for which no issue of fact existed under any reasonable view of the evidence. Further compounding this error, the prosecutor failed to instruct the Grand Jurors that the Defendant was under no duty to retreat since he was in his own dwelling. See, People v. Cruz-Sanchez, 13 Misc 3d 914, 915- 916 (Westchester County Court, 2006) (trial court dismissed an assault indictment where prosecutor charged Penal Law § 35.15, but erred by omitting the instruction that the actor was under no duty to retreat if he was in his home and not the initial aggressor, and such "inaccurate and incomplete instruction [ ] implied that the defendant had a duty to retreat when he may well have been under no such duty impaired the integrity of the proceeding to the prejudice of the defendant.") See also, People v. Simmons, 206 AD2d 550 (4th Dept. 1994) (manslaughter conviction reversed where trial court correctly omitted the initial aggressor proviso from the Penal Law § 35.15 instruction, but failed to "clarif[y] for the jury that the defendant had no duty to retreat.") Where, as here, a justification in the use of deadly force § 35.15 instruction was required to be charged to the Grand Jury, since the undisputed evidence presented was that the Defendant was in his own home at the time decedent threatened and/or attacked him, the prosecutor "should have gone on to discuss the rules governing retreat." People v. Jones, 3 NY3d 491,496 (2004).

Under the present circumstances, the Court finds that the failure to charge the complete justification defense under Penal Law § 35.20, as well as the manner in which the Penal Law § 35.15 charge was given, resulted in the probability of prejudice to the Defendant. The probability of prejudice to the Defendant is apparent from the fact that after the prosecutor completed presentation of evidence and requested that the Grand Jury consider only a single count of Murder in the Second Degree, one of the Grand Jurors asked the prosecution if they could also consider a manslaughter charge, which prompted the prosecutor to adjourn the proceedings briefly, whereupon the prosecutor, upon reconvening, agreed to charge the lesser count of Manslaughter in the First Degree as well. The likelihood of prejudice to this Defendant is further highlighted by the less than overwhelming vote by this Grand Jury notwithstanding the fact that such grand jurors were improperly charged concerning initial aggressor and duty to retreat and were not instructed on the complete defense of justification pursuant to Penal Law 35.20(3). The Court's inspection of voting records reveals that twelve (12) Grand Jurors voted to indict the Defendant on Count 1 (Murder in the Second Degree) with eight (8) opposed, and fifteen (15) Grand Jurors voted to indict Defendant on Count 2 (Manslaughter in the First Degree) with five (5) opposed. See, People v. Collier, 72 NY2d 298 (1988) (Court of Appeals held that indictment with an affirmative vote of 12 grand jurors was not defective even though not all 16 grand jurors were able to participate in deliberations and the vote ); See also, People v. Newcombe, 29 Misc 3d 933 (St. Lawrence County Court, 2010) (county court's discussion of defective proceeding where only 12 grand jurors voted in favor of indictment, where prosecutor allowed one of the 16 grand jurors who had expressed an inability to be fair was allowed to remain merely in order to obtain the minimum quorum); See also, People v. Hart, 25 AD3d 815, 816 (3rd Dept. 2006) (Third Department expressly noting "unanimous votes" of grand jurors).

The prosecutor's failure to charge Penal Law § 35.20 and the misleading and inaccurate charge concerning § 35.15 was "so misleading or incomplete as to substantially undermine the integrity of the proceedings." People v. Caracciola, 78 NY2d 1021, 1022 (1991). Consequently, this Court must dismiss the indictment in its entirety upon the ground that the Grand Jury proceeding was defective, and the proceeding was so irregular "that the integrity thereof[was] impaired and prejudice to the defendant [likely] result[ed]" (CPL 210.35[5]; see CPL 210.20[1][c]).

Defendant's motion pursuant to CPL § 210.20(1)(c) and § 210.35(5) to dismiss the indictment based upon the failure to maintain the integrity of the Grand Jury is GRANTED and the indictment is DISMISSED. The Defendant's remaining contentions need not be addressed at this time.

The Court notes that the People, in their opposition papers, expressly requested an order to resubmit this matter to a new grand jury pursuant to CPL § 210.45(9) if this Court dismissed because the "evidence is insufficient." (Johnson, Feb. 23, 2024, Response at 2). The Court has not dismissed upon such legal insufficiency ground, but rather upon CPL § 210.35(5), i.e., defects with respect to the integrity of the proceedings. Therefore, if the People wish to resubmit this case to a new Grand Jury, the People must make an appropriate application pursuant to CPL § 210.20(4) for leave of this Court for an Order authorizing the People to resubmit to a new Grand Jury.

Pursuant to CPL § 210.45(8) because the Court has dismissed the entire indictment, and the People have not yet properly requested leave to resubmit the matter to a new Grand Jury, the Court is required to vacate Defendant's remand without bail status (although the Court is certainly aware that Defendant will still be required to remain in the custody until he is discharged on parole for his current weapon possession conviction, likely no earlier than late September of this year).

If the People seek leave to represent this matter to a new Grand Jury, the Court, upon granting such leave, will simultaneously issue a new securing order remanding the Defendant without bail, such remand order to remain in effect pursuant to CPL § 210.45(9)(a),(b), (c), and (d).

This constitutes the Decision and Order of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of notice of entry of this decision and order.

SO ORDERED.

Dated: March 28, 2024

Ithaca, New York

SCOTT A. MILLER

Tompkins County Court Judge

Scott A. Miller, J.