People of the State of New York, v. 01 MATTHEW JOHNSON 09 (2026)

On June 12, 2026, this Court Ordered a grand jury reconstruction hearing as a result of the application of defense counsel for Robert Love, joined by defense counsel for Matthew Johnson, to dismiss the indictment due to defects in the grand jury proceeding. By the same Order, this Court ordered the release of the full, unredacted transcript of the grand jury proceeding to counsel for the remaining defendants, which, at that time, included Jonathan Lee  ¹ . On June 17 and July 1, 2026, this Court conducted a grand jury reconstruction hearing, after finding that there were more than two dozen discrepancies between the indictment and the charging portion of the July 1, 2025 grand jury transcript, discrepancies that included names of defendants, dates of alleged crimes, penal law sections, and descriptions of overt acts.

In New York, the Constitution guarantees that "[n]o person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury" (NY Const., art. I, § 6; see also CPL Article 190). The grand jury acts to shield citizens against prosecutorial excesses and protects individuals from unfounded prosecutions (see People v Calbud, Inc., 49 NY2d 389 [1980]). One essential function of a grand jury is to investigate criminal activity to determine whether sufficient evidence exists to accuse a citizen of a crime (see People v Huston, 88 NY2d 400 [1996]). An essential function of an indictment is to serve as a necessary method of providing a defendant with fair notice of the accusations made, so that he is able to prepare a defense (see People v Iannone, 45 NY2d 589 [1978]). An indictment assures that the crime for which the defendant is brought to trial is, in fact, one for which the defendant was indicted by the grand jury (see People v Iannone, supra).

The Criminal Procedure Law is clear: both the district attorney and the court are legal advisors to the grand jury (see CPL § 190.25 [6]). However, since the court is not present in the room during a grand jury proceeding, the practical function of a legal advisor is conferred upon the prosecutor, who is given broad powers, duties, and discretion in presenting the People's case (see People v Wiggins, 31 NY3d 1 [2018]; People v DiFalco, 44 NY2d 482 [1978]). To fulfill this role, the district attorney is also granted the discretion to determine what evidence is presented, and what evidence is excluded, to the grand jury (see People v DiFalco, supra). However, this discretion is not absolute. A prosecutor must serve the dual functions of public officer and advocate, and is "charged with the duty not only to secure indictments but also to see that justice is done" (People v Lancaster, 69 NY2d 20, 26; see People v Huston, supra). In order fulfill these substantial duties and powers, the People must be reminded of their duty of fair dealing, which requires the exercise of "completely impartial judgment and discretion" (People v DiFalco, supra at 487; see People v Pelchat, 62 NY2d 97 [1984]). Article 190 requires that the People, or the court, instruct the grand jury concerning the law with respect to the grand jury's duties or any matter before it, and that such instructions must be recorded in the minutes (see CPL § 190.25 [6]). CPL § 190.25 (6) was enacted in order to ensure that the charges to a grand jury would be recorded in order for a court to be able to review them for accuracy and adequacy (see People v Calbud, supra).

Article 210 of the Criminal Procedure Law allows dismissal of an indictment only when the grand jury proceeding is defective. Criminal Procedure Law § 210.35 sets forth how a grand jury proceeding may be defective, and CPL § 210.35 (5) mandates dismissal where a proceeding fails to conform to the requirements of CPL Article 190 "to such a degree that the integrity thereof is impaired and prejudice to the defendant may result" (see also CPL § 210.20 [1] [c]). A showing of actual prejudice is not required, but there must be an articulable likelihood of, or at least potential for, prejudice (see People v Huston, supra at 409). "Dismissal of indictments under CPL 210.35 (5) should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury" (People v Huston, supra at 409 [emphasis added]). Although this statutory test is "very precise and very high" (People v Darby, 75 NY2d 449, 455 [1990]), it does not require actual prejudice (People v Huston, supra at 409).

There have been no allegations of knowing misconduct or fraud on the part of the prosecutors who presented this matter to the grand jury, nor does this Court find any. However, this Court must address the numerous errors that occurred and/or were recorded during the grand jury presentation, errors that have been acknowledged by the People, and whether those errors, cumulatively, resulted in potential prejudice to these defendants, resulting in a defective grand jury presentation. The question of whether a particular presentation resulted in the impairment of the integrity of the grand jury and created the potential for prejudice, is a question of law, even though this Court must consider the specific facts and circumstances after reviewing the evidence presented (see People v Adessa, 89 NY2d 677 [1997]). In cases where irregularities in presenting the case to the Grand Jury rise to the level of impairing those proceedings and creating the risk of prejudice, "the indictment [can]not be permitted to stand even though it is supported by legally sufficient evidence" (People v Calbud, supra at 395; see People v Huston, supra).

The Court recognizes that not every flaw renders an indictment jurisdictionally defective, and that a jurisdictional defect in one count does not automatically render the entire indictment defective (see People v Iannone, supra). A count is jurisdictionally defective "only if it does not effectively charge the defendant with the commission of a particular crime," such as where it "fails to allege that a defendant committed acts constituting every material element of the crime charged" (People v Iannone, supra at 600). Jurisdictional defects may be raised for the first time on appeal, and may not be waived by a guilty plea (People v Saenger, 39 NY3d 433, 438 [2023]; see People v Mathis, 185 AD3d 1094 [3d Dept 2020]).

Every case begins with a presumption of regularity, which requires every court to presume that judicial proceedings were conducted in accordance with the law, and this presumption can only be overcome by substantial evidence, which is the challenger's burden (see People v Meyers, __ NY3d __, 2026 NY Slip Op 03261 [May 26, 2026]; People v Velasquez, 1 NY3d 44 [2003]; People v Nash, 69 AD3d 1113 [3d Dept 2010]). The "loss" of a stenographic record alone will not rebut that presumption of regularity, so long as the defendant is not prejudiced (see People v Meyers, supra; People v Harrison, 85 NY2d 794 [2004]). No prejudice results "if the record can be accurately reconstructed" (People v Harrison, supra at 796).

To obtain relief, such as a summary reversal, or dismissal of an indictment, a defendant must demonstrate that alternative methods to provide an adequate record "will not avail" (People v Meyers, supra at *6). The Court of Appeals recently advised that an important element of such a prejudice analysis, in the context of a missing or flawed record, is whether the judge, lawyers, and court staff (from a trial) are willing and capable of aiding in the reconstruction of a substitute records (People v Meyers, supra at *7). However, as here, in a grand jury proceeding, there is no judge, opposing counsel, or court staff, and the transcript is prepared by an employee of the District Attorney (see People v Wright, 146 Misc 2d 359 [Queens Cty. Crim. Ct. 1990] [the Court considered the use of pre-printed charges in lieu of transcribed oral charges to a grand jury, and found that such a practice resulted in impairment to the integrity of the grand jury and a potential for prejudice that was too great to be ignored]).

The People called two witnesses and this Court carefully considered their credibility and demeanor throughout. First, the People called the grand jury stenographer, a certified shorthand reporter who is employed by the Suffolk County District Attorney's Office. She testified that she was working as grand jury stenographer on July 1, 2025, and that she was assigned as the stenographer for the grand jury presentation associated with indictment 72023/2025, in addition to serving as the stenographer for the June 9, 17, 24 portions of the presentation. She testified that she has been a court reporter since 2009, but that she had been working since 2013 for the Suffolk District Attorney's Office as a grand jury stenographer.

She explained that when she is assigned to cover a presentation, she creates "briefs," or designations for defendant names or unique terminology for each particular case. These "briefs," or shortcuts, are put into her transcription computer program, which translates her notes, including her shorthand "briefs forms," into English. She testified that each court reporter has their own unique dictionaries which include the briefs, but that she does not personally transcribe each brief in her notes into English. Her computer-based program does it for her. She further testified that before a presentation begins, an assistant district attorney will provide her with a "green card" for the case, which includes names of defendants and their expected charges, and that she refers to the green cards to ensure that the "names and the charges and the subsections [are] correct" (Tr. p. 29, ln. 3-5). She testified that the "briefs" are compiled into her dictionary for each case. She then stated that after a case is completed, she deletes any unique "briefs," such as names, so that the "briefs" from one case will not conflict with any subsequent cases (Tr. p. 37, ln. 21-25). However, she testified that some "briefs" do not get deleted, if they are common and general terms that are used across many cases (Tr. p. 30, ln. 9-23).

With respect to the certified transcript that she prepared in connection with the July 1, 2025 presentation, she testified that in early June 2026, about a week and a half before this hearing, ADA Fischer called her and directed her attention to discrepancies that allegedly existed in her transcript compared to the typewritten charges provided by the prosecutors during the presentation. However, the stenographer indicated throughout her testimony, unequivocally, that she could not verify any of the alleged discrepancies brought to her attention because she is not capable of reviewing her stenographic notes or translating them presently:

ADA Fischer: In any presentation you do there are both notes and minutes?

Witness: Correct.

ADA Fischer: As you sit here today, can you decipher your stenographic notes from the July 1, 2025 proceeding?

Witness: No, I cannot.

ADA Fischer: When you were creating that transcript back on July 1 of 2025, how did you record specific names?

Witness: Oh, I made designations for each name. I wish I had a list of them, but I do not have my records from 2025.

ADA Fischer: I was going to ask, sitting here today, do you remember what your dictionary consisted of —

Witness: I do not, sir.

ADA Fischer: -- for the presentation of Robert Love?

ADA Fischer: You don't remember what your dictionary consisted of?

Witness: No.

ADA Fischer: Does the dictionary still exist today?

Witness: No.

(Tr. p. 36, ln. 18-25; p. 37, ln. 2-25).

The stenographer continued and testified that after being made aware of the alleged discrepancies in her transcript, she reviewed a copy of her certified transcript and compared it with the charging sheet, prepared by the prosecutor, from the July 1, 2025 presentation (Tr. p. 38, ln. 4-25). However, she was unable to compare either to the stenographic notes that she prepared simultaneously during the proceeding itself, and could only speculate about the source of the discrepancies:

The Court: Ma'am, you said, using that typewritten attachment to Exhibit Number 4, that [ ] tells you that you made a mistake in your original notes?

Witness: Correct.

The Court: But you can't read your original notes?

Witness: No.

The Court: So you don't know what it is is you took down at the time it was being spoken about live?

Witness: Correct

(Tr. p 41, ln. 13-25; p. 42, ln. 2-4).

ADA Fischer: With regard to that, did you — when you reviewed your stenographic notes, were you able to find any references to the name Ronald or Robert within there?

Witness: Yes.

ADA Fischer: You were?

Witness: Right.

ADA Fischer: In the stenographic notes?

Witness: Yes.

ADA Fischer: What were those references?

Witness: They were throughout the notes, but as I was typing, since it was Ronald Love and Robert Love, it's R-O-L and R-O-L, and as I was typing — we J define it, you know, and I might have pressed in the wrong designation. That's probably exactly what I did, because it was so similar, and my software either put in Robert — I don't remember back then. I don't know what I did.

(Tr. p. 42, ln. 12-25; pg. 43, ln. 2-10).

The Court: How do you know, based on your original stenographic notes, what she said as opposed to what she previously supplied to you?

The Witness: I really don't.

(Tr. p. 47, ln. 14-18).

Mr. Cassar: You don't have an independent recollection of what was said in the grand jury?

The Witness: No.

(Tr. p. 84, ln. 3-5).

Mr. Cassar: Then you have no independent — you have no longer have any way to independently verify your notes?

The Witness: Correct.

Mr. Cassar: They don't clearly show whether it was Robert or Ronald, correct?

The Witness: Yes.

Mr. Cassar: Based on what you heard, you used your abbreviation for Robert Love, correct?

The Witness: Right. Right.

As the stenographer continued, the Court observed her becoming confused under direct examination, and attempting to "correct" names even with respect to counts that were not alleged to have been errors, such as when she was questioned about count 5:

ADA Fischer: Now directing your attention to Count 5, also page 12. As you sit here today, do you recognize that there as an error in that transcription?

The Witness: Yes.

...

ADA Fischer: What is that error, as you recognize it today?

The Witness: I put Ronald Love in instead of Robert.

ADA Fischer: If I can direct your attention to the count immediately below, count 6, do you recognize an error as you sit here today?

The Witness: Yes. Ronald Love.

The Court: Did you just say "Ronald Love"

The Witness: Yes.

Mr. Cassar: She did.

The Witness: No.

Mr. Cassar: She did.

The Court: I know.

The Witness: Wait a minute.

ADA Fischer: Count 6.

ADA Tisi: Line 22 on page 12.

ADA Fischer: We're on Count 6, I believe.

The Witness: Count 6.

ADA Fischer: You're pointing to Count 8. Line 10.

The Witness: I put Robert Love? Robert Love.

The Court: Is your answer as to how you know that is an error the same as the question I asked you before, that it comes from the addendum to the green card and not y our recollection and not from your stenographic minutes?

The Witness: Right, from my recollection of the — no — yes. I'm getting confused.

The Court: It's okay.

The Witness: Yes, from my recollection of this that was provided to me (indicating).

The Court: The type written portion?

The Witness: Correct.

Mr. Cassar: That's exhibit —

The Witness: Because my notes were —

The Court: It's the typewritten paperwork attached to Exhibit 4, which is the green card for July 1st.

(Tr. p. 49, ln. 14-25; p. 50, ln. 2-25; p. 51, ln. 2-25, p. 52, ln. 2-3).

ADA Fischer: I'm now going to direct your attention to page 13, line 18. Does an error appear on that line?

The Witness: Which count, 11?

ADA Fischer: Count 11.

The Witness: Ronald.

ADA Fischer: What should it have been?

The Witness: Robert.

ADA Fischer: I'm sorry —

The Witness: I'm sorry, it's Robert. It should have been Ronald.

(Tr. p. 53, ln. 14-23).

ADA Fischer: You also indicated that you can't read your stenographic notes?

The Witness: Right.

ADA Fischer: Can you say that today, that you don't know that those names were—

The Witness: I don't know. I don't know which error it was, if it was the CAT program, if I defined it the wrong way. These things happen all the time. I don't — right now I do not recall what happened.

ADA Fischer: But it's fair to say you cannot read your stenographic notes with regard to this presentation?

The Witness: Correct areas of it I can.

(Tr. p. 98, ln. 23-25; p. 99, ln. 2-10.

It is clear to this Court, from the testimony of the stenographer, that she is unable now, over one year later, to determine whether references to names or dates in her transcript were error or were in fact correct:

Mr. Gioe: Okay. Now you had told us that your have the inability to re-read your stenographic notes.

The Witness: Now, yes. I haven't done it in decades.

Mr. Gioe: It's fair to say you can compare your stenographic notes to the printed out portion of it, correct?

The Witness: Some — some sections. Some sections I can't.

Mr. Gioe: Okay. For instance, in some parts of the testimony is it fair to say that Robert Love was recorded correctly as Robert Love?

The Witness: In some portions, yes. Maybe not. I don't know.

Mr. Gioe: Is it also fair to say that at some portions of your testimony Ronald Love was reported correctly, correct?

The Witness: Right.

Mr. Gioe: Is it at all possible for you to go back through your stenographic notes and compare when Robert Love and Ronald Love were recorded correctly and see where they are correct in the transcript?

The Witness:No.

Mr. Gioe: You can't do that?

The Witness: I can't do that. I can't do that because I don't know what —

The Court: Next Question.

Mr. Gioe: Is it possible for you to tell us whether or not you actually recorded Ronald Love wrong or you hear it wrong?

The Witness: I don't know.

Mr. Gioe: As you stand here today, in your testimony you can't tell us whether or not there was actually any mistakes made by you?

The Witness: No.

(Tr. p. 71, ln. 3-25; p. 72, ln. 2-14).

While the grand jury stenographer testified that her transcript had multiple errors throughout, she was unable to state the source of the inclusion of the wrong defendant's name, the wrong date, incorrect penal law sections, in her transcript. Instead, she relied on speculation:

The Court: How do you know [the names] are different?

The Witness: That is in my notes. I probably made a mistake. I put junior instead of senior.

The Court: I don't know. I'm asking how can you tell —

The Witness: Yes.

The Court: -- looking at the transcript?

The Witness: I can't tell. I would have to look at my notes.

The Court: Okay.

The Witness: But these are all errors. They could be so many different things. It could be hearing. It could be this (indicating). I don't know.

(Tr. p. 56, ln. 8-24).

ADA Fischer: How does an error in a name or date happen in a presentation?

The Witness: Very easily. So many different ways I could type it wrong. I could hear it wrong.

The Court: Are there other possibilities? Can somebody say it wrong?

The Witness: Yes. Yes.

The Court: There you go.

The Witness: Absolutely. Happens all the time. Hearing error, typographic. It could be anything.

(Tr. p. 66, ln. 17-25; p. 67, ln. 2-5).

Specifically, with respect to the wrong alleged crime dates in the July 1, 2025 transcript, the stenographer also could only speculate about the source of the alleged discrepancy:

The Witness: Oh, on there. Count 20, the crime date November 3rd of 2024, Penal Law Section 220.39 (1).

ADA Fischer: And the charge sheet reflects what date of crime?

The Witness: 12/3/2024

ADA Fischer:Do you recognize now that that is —

The Witness: Yes, it is.

ADA Fischer: I'd like to direct your attention —

The Court:In your original notes do November and December look the same?

The Witness: I could have wrote the wrong date, the wrong —

The Court: Ma'am, my question is: When you look at your stenographic notes are — November and December, do they appear the same?

The Witness: No. November is N-O-F. December is D-E-S, so I must have heard the wrong —

(Tr. p. 58, ln. 24-25; p. 59, ln. 2-18).

The stenographer was then questioned about count 1 and the overt acts associated with that conspiracy charge, but she did not allege any errors in overt acts 1, 8, 9 or 28:

ADA Fischer: If I could now direct your attention to page 39, line 8, and what's being shown on the presenter is Overt Act Number 1. With regard to line 8, are there any claimed errors on the name there?

The Witness: I don't know. I don't have the overt acts in front of me.

ADA Fischer: If I could now direct your attention to page 40, line 5. This is regarding Overt Act Number 8. What is recorded in your grand jury transcripts?

The Witness: On or about November 14th of 2024 in Suffolk County, Robert Love sold cocaine to another.

ADA Fischer: And as you sit here today, do you recognize that to be an error?

The Witness: As I sit here today, no.

ADA Fischer: If I could now direct you to page 40, line 8

ADA Fischer: This is referencing Overt Act Number 9. What is the recorded name?

The Witness: On or about 2025, Robert Love and Timothy McKay, Sr., acting in concert with each other, sold cocaine to another.

ADA Fischer: As you sit here today, do you recognize that as an error?

The Witness: No.

ADA Fischer: If I could now direct your attention to line 7, and just go up a little bit. These overt acts as they're recorded in your transcript reflect Number 9?

The Witness: Yes.

ADA Fischer: If I can direct your attention to line 11. That overt act is now referenced as Count 10?

The Witness: Correct.

ADA Fischer: Does that numbering continue in other places in the transcript that are currently listed on this page?

The Witness: You mean the counts or the numbers?

ADA Fischer: Either one.

Mr. Cassar: Objection.

The Court: Mr. Fischer, are you attempting to show that she changed the designation of the overt acts on occasion back and forth between number and count?

ADA Fischer: Yes, Your Honor.

The Court: Okay, I got it.

ADA Fischer: Finally, if we can go to page 43, line 5, and what's recorded in your transcript as Number 28 or Overt Act 28—

The Court: It doesn't say Overt Act 28.

The Witness: It doesn't say — it says Number 28

The Court: It says Number 28.

The Witness: It should very possibly say Number 28.

ADA Fischer: With regard to Number 28, what is the reported date that that occurred?

The Witness: On or about May 21st of 2025.

ADA Fischer: You recorded minutes at other points in time in this presentation?

The Witness: Correct.

ADA Fischer: Does the date of May 21st of 2025 appear in your transcript anyplace else?

The Witness: I don't know.

(Tr. p. 63, ln. 13-25 [emphasis added]; p. 64, ln. 2-25; p. 65, ln. 2-25; p. 66 ln. 2-13).

It is clear from the totality of her testimony that the stenographer only now recognizes that the oral, transcribed charge in the grand jury is different than that which was provided in typewritten form by the prosecutors during the presentation. However, the stenographer was wholly unable to articulate in any credible fashion why or how these discrepancies occurred. She simply acknowledges the claimed errors to which she was directed. When questioned about claimed errors within the grand jury charge regarding overt acts 1, 8, 9, and 28, unlike other claimed errors, the stenographer did not acknowledge any incorrect dates and names, because her attention had not been drawn to these discrepancies before the hearing. She testified:

Mr. Cassar: You don't keep a copy of the charge sheet, correct?

The Witness: Yes, I do.

Mr. Cassar: Do you have a copy of the charge sheet with you?

The Witness: No. That was from 2025.

Mr. Cassar: That's what I mean. I thought you said you return the charge sheet and the green card to the foreperson?

The Witness: Right, their copy.

Mr. Cassar: You keep a copy?

The Witness: I keep a copy.

Mr. Cassar: Okay.

The Witness: The ADA has a copy.

Mr. Cassar: Do you have your copy?

The Witness: No.

Mr. Cassar: Okay. You're relying on the copy that the district attorney's office provided you, correct?

The Witness: Yes, because I had no idea I made errors.

Mr. Cassar: You can't tell us if this was the charge sheet that you had during the grand jury presentation, correct?

The Witness: Not a hundred percent, because it's a copy.

Mr. Cassar: You don't know, right?

The Witness: No.

Mr. Cassar: This is what the DA's office provided you?

The Witness: Correct.

Mr. Cassar: You're relying on this charge sheet to say that you made certain errors?

The Witness: Right, now.

Mr. Cassar: You don't have an independent recollection of what was said in the grand jury?

The Witness: No.

(Tr. p. 82, ln.14-25; p. 83, ln. 2-8, 15-25; p. 84, ln. 2-5).

Mr. Cassar: Then you're relying on the charge sheet that the People are giving you now to say you made errors, correct?

The Witness: Right, because — yes. I'm just going to say yes.

(Tr. p. 97, ln. 7-11).

Of particular concern is the stenographer's equivocal responses regarding the accuracy of her July 1, 2025 transcript as a whole:

Mr. Gioe: Now I ask you, was the minutes that were submitted to this Court a fair and accurate representation of that grand jury proceeding?

The Witness: Yes.

Mr. Gioe: Okay.

The Witness: As far as I'm concerned.

(Tr. p. 73, ln. 20-25).

Mr. Cassar: Now, the grand jury minutes that you provided to the Court and the DA, right, you certified that those grand jury minutes were true and correct transcript of the grand jury proceedings in this matter, correct?

The Witness: Right.

Mr. Cassar: And prior to certifying that you reviewed the transcript?

The Witness: Yes.

Mr. Cassar: And you compared the transcript to your steno notes, correct?

The Witness: Right.

Mr. Cassar: After you do that process, after you review the transcript to your stenographic notes, you certified that the transcripts in this case were true and accurate, correct?

The Witness: Yes.

(Tr. p. 84, ln. 10-25; p. 85, ln. 2).

However, the stenographer then, upon re-direct and re-cross, testified to the opposite:

ADA Fischer: Is it fair to say at the time that you took this testimony and you were creating this transcript you did not compare your notes to the final transcript?

The Witness: No.

The Court: "No," it's not fair or "no," you didn't?

The Witness: No, I did not.

(Tr. p. 102, ln. 25; p. 103, ln. 2-8).

Mr. Gioe: Ma'am, during your questioning by Mr. Cassar, you indicated that when you complete a transcript before you certify that transcript, you will review and compare it to your steno notes?

The Witness: Wait, back up.

Mr. Gioe: I'm reiterating your testimony. You told us that when you certify — before you certify you will compare your transcript with the stenographic notes?

The Witness: No.

Mr. Gioe: Okay.

The Witness: No.

Mr. Gioe: You don't do that?

The Witness: No.

(Tr. p. 104, ln. 12-25; p. 105, ln. 2).

Mr. Gioe: Now here today you're telling us that that document contains a series of mistakes?

The Witness: Mistakes, a series, yes.

Mr. Gioe: My question to you is: Those mistakes, do they impair the certification of your transcript?

The Witness: In this particular case, yes.

(Tr. p. 106, ln. 22-25; p. 107, 2-3).

ADA Fischer: Is it also fair to say that there's no way for you to then — to verify that these were not errors?

The Witness: Wait a minute, repeat that.

ADA Fischer: Is it fair to say there's no way for you to verify whether or not an error here occurred?

The Witness: From my notes?

ADA Fischer: From your stenographic notes.

The Witness: No.

(Tr. p. 99, ln. 13-21).

The People also called Assistant District Attorney Jennifer Wickers, who presented the case to the grand jury on July 1, 2025, including the charging portion. ADA Wickers testified that due to the fact that the charges were numerous and spanned a long period of time, she charged the grand jury by reading from the charging sheet and the green card that she had prepared ahead of time (People's Hearing Exhibit 4). However, her testimony is not corroborated by the grand jury stenographer or the certified transcript of the proceeding.

The attempt to reconstruct the grand jury proceeding, specifically the charging portion of the presentation that occurred on July 1, 2025, has failed. Criminal Procedure Law § 190.20 allows this Court, as a part of its statutory judicial authority to preside over the grand jury, to correct typographical errors in the grand jury minutes, including errors in crime dates. However, there is insufficient evidence here that the grand jury was provided "adequate guidance to permit [it] to carry out its function of intelligently determining whether a crime had been committed, by each defendant, on certain dates, in violation of specific penal law sections, and whether the elements of each crime charged against each defendant has been established by legally sufficient evidence (see People v Mujahid, 45 AD3d 1184 [3d Dept 2007], lv denied, 10 NY3d 814 [2008]; cf. People v Smith, 6 AD3d 1188 [4th Dept 2004], aff'd 4 NY3d 806 [2005] [court did not err in correcting a typographical error in the grand jury minutes concerning the date of the alleged crime where the stenographer testified that she herself had erred in transcribing from her own notes]).

While a grand jury need not be instructed on the law with the same degree of precision that is required when a petit jury is instructed, based upon a review of the transcripts of the grand jury proceeding, along with the evidence presented during the reconstruction hearing, this Court finds that the instructions as reflected in the transcript were deficient and confusing such that the integrity of the grand jury proceedings were so impaired. That potentially prejudiced these defendants, and dismissal of the indictment is the only remedy available at this time (see People v Caracciola, 78 NY2d 1021 [1991]).

The Court notes that the People, for the first time in their written closing argument, seek to amend the grand jury minutes, pursuant to CPL § 200.70. However, this belated request, which comes several months after Mr. Cassar's written request for this Court to inspect the grand jury minutes, and long after these errors were discovered during this Court's in camera inspection, does not conform to the mandates of CPL § 200.70. This general request contained within the People's memorandum of law is not a motion made on notice, with opportunity to be heard, and fails to contain specifics of exactly what the Court is being asked to amend. Instead, the People make the request to simply fix the "mere mistake[s]" contained within the grand jury transcript to conform the minutes to the indictment itself (Fischer Memo of Law at ¶2).

While an indictment may be amended "with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like," amendments are subject to the limitation that they "not change the theory . . . or otherwise tend to prejudice the defendant on the merits" (CPL § 200.70 [1]). The People argue that the 26 errors (that they have acknowledged) do not prejudice the defendants. The Court cannot be satisfied that the defendants were not prejudiced.

Based on the transcript of the grand jury proceedings, during the charging portion of the presentation, Robert Love was incorrectly charged with 14 additional B felonies, stemming from 7 different alleged narcotics sales. The minutes of the proceedings reflect that the grand jury heard Robert Love's name connected with 14 additional B felonies connected with 7 additional sales, and the prejudice that may have permeated to the grand jury deliberation cannot be calculated. Additionally, errors in the instructions with respect to count 1, and several overt acts, place Robert Love into the conspiracy a number of months before he was alleged to have entered the conspiracy, by way of overt acts, when his name was mistakenly reflected in the instructions instead of Ronald Love's.

With respect to Matthew Johnson, as he was never alleged to possess or sell narcotics, and that one of the three overt acts that he is alleged to have engaged in, in furtherance of the alleged conspiracy, contained a discrepancy with respect to the date, and that all three alleged overt acts included Robert Love, the potential prejudice that may have resulted likewise cannot be calculated.

Based upon the contradictory testimony of the stenographer and the ADA who charged the grand jury on July 1, 2025, it is impossible for this Court to determine the adequacy of the instructions that were actually provided to the grand jury.

Ultimately, the potential prejudice suffered by these defendants, and the interests of justice, require that the entire indictment, 72073/2025 be dismissed as against the above-captioned defendants. While the initial focus of the grand jury reconstruction hearing was with respect to 18 counts and 3 overt acts, considering the totality of the grand jury stenographer's testimony, including her testimony that the transcript contains a "series of mistakes" which "impair the certification of her transcript" in this case, it is patent that the entirety of the transcript from the July 1, 2025 presentation is flawed, rendering the proceeding defective as to Robert Love and Matthew Johnson (Tr. p. 106, ln. 22-24; p. 107, ln. 2-3).

However, in the absence of a finding, or even allegations, of improper motive, attempt to gain an advantage over any defendant, or any other malfeaseance or bad faith by ADA Wickers or ADA Fischer, the People are granted leave to represent this matter to a new grand jury within 45 days (see CPL § 210.20 [4]). As such, the original securing orders will remain in place for the above-captioned defendants.

There were ten (10) defendants charged in this indictment and all but the above-captioned defendants have been disposed of by way of guilty pleas, some to now faulty counts. Three (3) of those eight (8) remain incarcerated as a result of those pleas. The People are directed to serve this decision and Order, as well as this Court's June 12, 2026 decision and Order, which ordered the reconstruction hearing on counsel for the eight (8) other defendants, as well as the unredacted grand jury minutes immediately. With respect to the defendants who are presently incarcerated, the People are directed file writs to facilitate their return to this Court for further proceedings forthwith for an appearance, with counsel, on September 2, 2026. The defendants who are not presently incarcerated shall be calendared for that same date for all purposes  ² .

The foregoing constitutes the decision and Order of this Court.

Dated: 19 AUGUST 2026

Riverhead, NY

J.S.C.

FOOTNOTES

1.   Defendant Jonathan Lee plead guilty prior to the commencement of the hearing.

2.   This Court is troubled by the grand jury stenographer's repeated admissions that she has deleted her case specific "dictionary" and "brief forms" for this matter, and that it is her common practice to delete her case specific dictionaries after presentations have concluded, thus rendering her unable to review her transcribed notes for this case or any other (Tr. p. 35, ln. 16-22; p. 37, ln. 10-25). In fact, the grand jury stenographer testified that this is her common practice, and that she had not "read notes in ten years" (Tr. p. 35, ln. 11-15). Judiciary Law § 325 provides that all original notes and minutes of a grand jury proceeding shall be kept in the custody of the district attorney, unless upon written order of a court seeking to impound the original notes, minutes, or exhibits. Here, considering the unequivocal testimony of the grand jury stenographer, it is patent that Judiciary Law § 325 has not been complied with. Had these dictionaries been maintained, this proceeding might have been able to be reconstructed.

John B. Collins, J.