PEOPLE v. FONTANEZ (2025)

Judgment, Supreme Court, New York County (Michael Obus, J., on motions;  Curtis J. Farber, J., at plea;  Steven Statsinger, J., at sentencing), rendered April 11, 2019, as amended May 2, 2019, convicting defendant, upon his guilty plea, of attempted criminal tampering in the first degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

Defendant contends that the legal definition of first-degree criminal tampering given as part of the grand jury instructions was defective and that the defect was so fundamental as to “impair[ ]” the “integrity” of the grand jury proceeding, warranting dismissal of the indictment under CPL 210.35(5).  Specifically, defendant contends that the prosecutor omitted or failed to adequately define the element of “a substantial interruption or impairment of a service rendered to the public” (see Penal Law § 145.20).

Defendant waived his challenge to the grand jury instructions when he waived his right to appeal (see People v. Higgs, 146 A.D.3d 981, 981, 44 N.Y.S.3d 914 [2d Dept. 2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017];  see also People v. Correa, 228 A.D.3d 409, 410, 211 N.Y.S.3d 360 [1st Dept. 2024], lv denied 42 N.Y.3d 1079, 227 N.Y.S.3d 573, 252 N.E.3d 512 [2025]).  Defendant also forfeited his challenge to the grand jury instructions by pleading guilty (see People v. Rosado, 202 A.D.3d 445, 445, 158 N.Y.S.3d 574 [1st Dept. 2022], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 455, 185 N.E.3d 976 [2022];  People v. Rivera, 93 A.D.3d 409, 409, 938 N.Y.S.2d 888 [1st Dept. 2012], lv denied 19 N.Y.3d 866, 947 N.Y.S.2d 415, 970 N.E.2d 438 [2012]).  Defendant's challenge to the grand jury instructions is also unpreserved, as defendant did not raise the specific issue he seeks to raise on appeal in any of his motions and “[d]efendant's generalized reference to grand jury instructions in his pretrial omnibus motion was insufficient to preserve this claim” (see People v. Green, 105 A.D.3d 611, 612, 963 N.Y.S.2d 257 [1st Dept. 2013], lv denied 21 N.Y.3d 1015, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013];  see also People v. Brown, 81 N.Y.2d 798, 799, 595 N.Y.S.2d 370, 611 N.E.2d 271 [1993]).

Alternatively, we find, after in camera review of the grand jury instructions, that defendant's challenge thereto is unavailing.  The grand jury instructions were facially sufficient, regardless of how the “substantial interruption or impairment of a service rendered to the public” element of the first-degree criminal tampering offense is defined.  The prosecutor fully and accurately quoted to the grand jury the statutory definition of criminal tampering in the first degree;  no further explanation was required (see Green, 105 A.D.3d at 612, 963 N.Y.S.2d 257;  Rivera, 93 A.D.3d at 409–410, 938 N.Y.S.2d 888).

In view of our disposition of this issue, we need not reach the parties’ arguments with respect to the proper interpretation of the relevant statutory language.

“This Court's prior order, which denied defendant's motion to expand the record to include grand jury minutes, is dispositive of his claim that the absence of such minutes unduly hinders his ability to present an appeal” (see People v. Roberts, 7 A.D.3d 429, 429, 776 N.Y.S.2d 479 [1st Dept. 2004], lv denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004];  People v. Cromer, 302 A.D.2d 218, 218, 753 N.Y.S.2d 716 [1st Dept. 2003], lv denied 100 N.Y.2d 537, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003]).  Defendant has not at any rate demonstrated a compelling and particularized need for access to the grand jury minutes (see People v. Robinson, 98 N.Y.2d 755, 756, 751 N.Y.S.2d 843, 781 N.E.2d 908 [2002)], especially since the issue defendant now seeks to raise was forfeited by his guilty plea (see Roberts, 7 A.D.3d at 429–430, 776 N.Y.S.2d 479).

Defendant's challenge to the validity of his guilty plea under People v. Lopez (71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]) is also unavailing.  “Defendant admitted his guilt of the precise conduct with which he was charged,” and his claim that “the admitted acts did not, as a matter of statutory interpretation,” satisfy the “substantial interruption or impairment of a service rendered to the public” element of first-degree criminal tampering was forfeited by his guilty plea and “cannot be revived by characterizing it as a challenge to the plea allocution” (see People v. Baez, 148 A.D.3d 517, 517, 48 N.Y.S.3d 589 [1st Dept. 2017], lv denied 29 N.Y.3d 1028, 62 N.Y.S.3d 297, 84 N.E.3d 969 [2017]).