THE PEOPLE OF THE STATE OF NEW YORK APPELLANT v. ET AL DEFENDANT (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice by granting the People leave to re-present the charges to another grand jury and as modified the order is affirmed.

Memorandum:  In this prosecution arising from an altercation that allegedly resulted in serious physical injury to one person (hereafter, victim) and damage to another person's vehicle, the People obtained an indictment charging defendants Scott E. Blauvelt and Kyle C. Norcross with gang assault in the second degree (Penal Law

§ 120.06), charging Blauvelt with criminal mischief in the third degree (§ 145.05[2] ), and charging Norcross and a third defendant with criminal mischief in the fourth degree (§ 145.00[3] ).  County Court granted defendants' motions to dismiss the indictment, concluding in relevant part that there was legally insufficient evidence of serious physical injury to support the gang assault counts and that the conduct of the prosecutor impaired the integrity of the grand jury proceeding.  The People appeal with respect to Blauvelt and Norcross.  At the outset, we decline to grant Blauvelt's request that we exercise our discretion to dismiss the People's appeal based on their delay in perfecting it (see CPL 470.60[1];  cf.  People v. Calaff, 103 AD3d 500, 500 [1st Dept 2013], affd 23 NY3d 89, 101 [2014], cert denied _ U.S. _, 135 S Ct 273 [2014] ).  We also note that, on this appeal by the People, we have no authority to consider the alternative ground for affirmance raised by Blauvelt in his brief, which does not involve an error or defect that “may have adversely affected the appellant” (CPL 470.15[1];  see People v. Karp, 76 N.Y.2d 1006, 1008–1009 [1990];  People v. Woodruff, 4 AD3d 770, 773 [4th Dept 2004] ).

We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury.  While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to “readily apparent external physical injuries of which he obviously [had] personal knowledge” (People v. Brandon, 102 A.D.2d 832, 833 [2d Dept 1984] ), and his testimony concerning the leg injury he sustained in the altercation, i.e., that the injury required surgery, that he took narcotic pain medication for two months, and that he was still using a crutch and experiencing pain and range of motion limitations at the time of the grand jury proceeding more than seven months after the incident, was sufficient to establish a protracted impairment of health and a protracted impairment of the function of his leg (see Penal Law § 10.00[10];  People v. Heyliger, 126 AD3d 1117, 1119 [3d Dept 2015], lv denied 25 NY3d 1165 [2015];  People v. Pittman, 253 A.D.2d 694, 694 [1st Dept 1998], lv denied 92 N.Y.2d 1052 [1999];  People v. Garcia, 202 A.D.2d 189, 190 [1st Dept 1994], lv denied 83 N.Y.2d 1003 [1994];  see generally People v. Sponburgh, 61 AD3d 1415, 1416 [4th Dept 2009], lv denied 12 NY3d 929 [2009] ).

We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired (see People v. Thompson, 22 NY3d 687, 699 [2014], rearg. denied 23 NY3d 948 [2014];  see generally CPL 210.20[1][c];  210.35[5];  People v. Huston, 88 N.Y.2d 400, 408–409 [1996] ).  The prosecutor acted improperly in repeatedly asking leading questions of his witnesses (see generally People v. Ballerstein, 52 AD3d 1192, 1194 [4th Dept 2008];  People v. Bhupsingh, 297 A.D.2d 386, 387–388 [2d Dept 2002] ), and in introducing hearsay evidence (see Huston, 88 N.Y.2d at 406–407;  People v. Pelchat, 62 N.Y.2d 97, 106 [1984];  People v. Gordon, 101 AD3d 1473, 1474–1476 [3d Dept 2012] ).  During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying (see People v. Washington, 89 AD3d 1516, 1517 [4th Dept 2011], lv denied 18 NY3d 963 [2012] ), and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general (see generally People v. De Vito, 21 AD3d 696, 700–701 [3d Dept 2005];  People v. Ramos, 139 A.D.2d 775, 776–777 [2d Dept 1988], appeal dismissed 73 N.Y.2d 866 [1989] ).  “Most egregiously,” as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim's injuries must have resulted from “a substantial beating” (see Huston, 88 N.Y.2d at 407–408;  see generally People v. Batashure, 75 N.Y.2d 306, 307–308 [1990];  People v. Paperno, 54 N.Y.2d 294, 300–301 [1981] ).  We remind the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only ․ seek convictions but [must] also ․ see that justice is done” (Pelchat, 62 N.Y.2d at 105;  see Thompson, 22 NY3d at 697–698;  People v. Santorelli, 95 N.Y.2d 412, 420–421 [2000];  People v. Mott, 94 A.D.2d 415, 418 [4th Dept 1983] ).

Although we thus conclude that the indictment was properly dismissed, we further conclude, in the exercise of our discretion, that the People should be granted leave to resubmit the charges to another grand jury (see CPL 210.20 [4];  People v. Loomis, 70 AD3d 1199, 1201–1202 [3d Dept 2010];  see also Huston, 88 N.Y.2d at 411;  People v. Barabash, 18 AD3d 474, 474 [2d Dept 2005] ), and we modify the order accordingly.  We note that the prosecutor has offered to recuse himself and seek the appointment of a special prosecutor to handle the resubmission.

Mark W. Bennett

Clerk of the Court