THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NORMAN KOONCE DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  We previously held this case, reserved decision and remitted the matter to County Court to rule on defendant's renewed motion to “ ‘rule on whether the jurors who voted this indictment were present for all the testimony presented on this case’ “ (People v. Koonce, 111 AD3d 1277, 1279).   We determined in our prior decision that defendant's remaining contentions on the appeal from the judgment of conviction after a jury trial lacked merit (id. at 1278–1279).   Upon remittal, the court denied the renewed motion, and we now affirm.

Defendant contends that the grand jury proceeding was not properly conducted in accordance with CPL 190.25(1) inasmuch as the summary sheet from the proceeding shows that 20 votes were cast to indict him, while the attendance sheet lists only 19 grand jurors present.   We reject that contention.   The attendance sheet shows, in fact, that there were 21 grand jurors present on the day that defendant was indicted.   We therefore conclude from the two sheets that one grand juror simply did not vote.   Thus, contrary to defendant's contention, the record establishes that “at least 12 [grand] jurors who ․ heard all of the ‘essential and critical evidence’ vote[d] to indict” (People v. Perry, 199 A.D.2d 889, 891, lv denied 83 N.Y.2d 856;  see People v. Collier, 72 N.Y.2d 298, 301–302).

Frances E. Cafarell

Clerk of the Court