PEOPLE v. HENRIQUEZ (2019)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Clinton County (Lawliss, J.), entered May 24, 2017, which granted defendant's motion to dismiss the indictment.

Defendant, an inmate at Clinton Correctional Facility, was charged by indictment with criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree and promoting prison contraband in the first degree (two counts).  In his omnibus motion, defendant, among other things, moved to dismiss the indictment.  After reviewing the grand jury minutes, County Court granted the motion and dismissed the indictment under CPL 210.35(5) on the basis that the integrity of the grand jury proceeding had been impaired due to the People's inadequate inquiry as to the potential bias by a grand juror.  The People appeal.

“Dismissal of an indictment pursuant to CPL 210.35(5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury” (People v. Sutherland, 104 A.D.3d 1064, 1066, 962 N.Y.S.2d 463 [2013] [internal quotation marks, brackets and citations omitted];  see People v. Spencer, 289 A.D.2d 877, 878, 736 N.Y.S.2d 428 [2001], lv denied 98 N.Y.2d 655, 745 N.Y.S.2d 514, 772 N.E.2d 617 [2002] ).  “The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias” (People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ).  Prejudice may arise based upon a close relationship between a grand juror and a witness (see People v. Wilkinson, 166 A.D.3d 1396, 1397, 88 N.Y.S.3d 684 [2018], lv denied 32 N.Y.3d 1179, 97 N.Y.S.3d 619, 121 N.E.3d 247 [2019] ).

The record discloses that one of the grand jurors knew one of the testifying witnesses.  The grand juror, who used to be a teacher and had been retired for 10 years, stated that the witness was a former student and that he had not seen the witness since the student left his class.  The grand juror was then asked whether there was anything else that would affect his ability to be fair and impartial, to which he responded, “No.” In our view, the relationship between the grand juror and the witness was not a close relationship so as to give rise to the possibility of prejudice (see People v. Richardson, 132 A.D.3d 1239, 1241, 17 N.Y.S.3d 207 [2015] ).  Furthermore, although the prosecutor's voir dire of the grand juror was brief, we are satisfied that, based upon his unequivocal response thereto, the grand juror's impartiality was not compromised (see People v. Wilkinson, 166 A.D.3d at 1398, 88 N.Y.S.3d 684;  People v. Malloy, 166 A.D.3d 1302, 1303–1304, 88 N.Y.S.3d 652 [2018], lv granted 32 N.Y.3d 1180, 97 N.Y.S.3d 642, 121 N.E.3d 270 [2019];  People v. Farley, 107 A.D.3d 1295, 1296, 968 N.Y.S.2d 209 [2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ).  We also note that the grand jurors unanimously voted to indict defendant and, therefore, it is speculative to conclude that the grand juror at issue might have influenced the other grand jurors (see People v. Wilkinson, 166 A.D.3d at 1398, 88 N.Y.S.3d 684).  Additionally, our review of the grand jury minutes reveals that legally sufficient evidence was presented to the grand jury (see People v. Arbas, 85 A.D.3d 1320, 1321, 924 N.Y.S.2d 671 [2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ).  Accordingly, we find that the exceptional and drastic remedy of dismissal of the indictment was not warranted under the circumstances of this case, and County Court erred in granting defendant's motion.¹

ORDERED that the order is reversed, on the law, motion denied, and indictment reinstated.

FOOTNOTES

1.   To the extent that defendant contends that he was deprived of his right to testify before the grand jury, such contention is waived given that defendant did not seek such relief in a timely fashion (see CPL 190.50[5][c];  People v. Cherry, 149 A.D.3d 1346, 1346, 52 N.Y.S.3d 567 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ).

Aarons, J.

Garry, P.J., Mulvey, Rumsey and Pritzker, JJ., concur.