The People, etc., appellant, v. Sheldene Campbell, respondent. (2010)

Argued-December 3, 2009

DECISION & ORDER

Appeal by the People, as limited by their brief, from so much of an order of the County Court, Westchester County (Cacace, J.), entered July 29, 2009, as granted those branches of the defendant's omnibus motion which were to dismiss counts one, two, three, and six of the indictment on the grounds that the evidence presented to the grand jury was legally insufficient and that the grand jury proceeding was defective, with leave to re-present the matter to a new grand jury.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, those branches of the defendant's omnibus motion which were to dismiss counts one, two, three, and six of the indictment on the grounds that the evidence presented to the grand jury was legally insufficient and that the grand jury proceeding was defective are denied, those counts of the indictment are reinstated, and the matter is remitted to the County Court, Westchester County, for further proceedings on the indictment.

In the context of grand jury procedure, “legally sufficient evidence means proof of a prima facie case, not proof beyond a reasonable doubt” (People v. Gordon, 88 N.Y.2d 92, 95-96).   A court reviewing the legal sufficiency of evidence presented to the grand jury must determine whether that evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see People v. Jensen, 86 N.Y.2d 248, 251;  People v. Jennings, 69 N.Y.2d 103, 114).

Here, the evidence presented to the grand jury, viewed in the light most favorable to the People, was legally sufficient to support count one of the indictment, charging the defendant with murder in the second degree (see Penal Law § 125.25[1] ), count two of the indictment, charging the defendant with attempted murder in the second degree (see Penal Law §§ 110.00, 125.25[1] ), count three of the indictment, charging the defendant with attempted assault in the first degree (see Penal Law §§ 110.00, 120.10 [1] ), and count six of the indictment, charging the defendant with assault in the third degree (see Penal Law § 120.00[1] ).   The grand jury could have reasonably inferred from the evidence that the defendant acted with the culpable mental state of intent required to commit each of those offenses (see Penal Law § 15.05[1];  see generally People v. Steinberg, 79 N.Y.2d 673, 682).   Since the grand jury could have rationally drawn such inferences, the fact that the evidence presented to the grand jury also is susceptible of other inferences as to the defendant's culpable mental state is irrelevant (see generally People v. Jensen, 86 N.Y.2d at 252).   Accordingly, the County Court erred in granting that branch of the defendant's omnibus motion which was to dismiss counts one, two, three, and six of the indictment on the ground that the evidence presented to the grand jury was legally insufficient.

Further, the grand jury proceeding was not rendered defective by the People's failure to instruct the grand jury that, in order to indict the defendant, the evidence had to exclude to a moral certainty every hypothesis but guilt.   Initially, the evidence presented to the grand jury was not wholly circumstantial.   Rather, certain of the defendant's statements regarding the subject incidents, as related by a police witness, constituted direct evidence of several of the principal facts in issue (see People v. Licitra, 47 N.Y.2d 554, 559-560;  People v. Rumble, 45 N.Y.2d 879, 880).   Thus, the rigorous standards applied to prosecutions based exclusively on circumstantial evidence are not applicable here (see People v. Licitra, 47 N.Y.2d at 560;  People v. Rumble, 45 N.Y.2d at 881).

In any event, even if this case were based on wholly circumstantial evidence, the People were not required to instruct the grand jury that, in order to indict the defendant, the evidence before it had to exclude to a moral certainty every hypothesis but guilt (see People v. Deegan, 69 N.Y.2d 976, 979;  see also People v. Wooten, 283 A.D.2d 931, 932).   Accordingly, the County Court erred in granting that branch of the defendant's omnibus motion which was to dismiss counts one, two, three, and six of the indictment on the ground that the grand jury proceeding was defective.

COVELLO, J.P., ANGIOLILLO, LOTT and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court