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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Thaddeus BRUNSON, Defendant–Appellant.


Decided: October 10, 2019

Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ. Janet E. Sabel, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Judgments, Supreme Court, New York County (Gregory Carro, J. at suppression hearing; Charles H. Solomon, J. at pleas and sentencing), rendered May 21, 2013, convicting defendant of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a weapon in the third degree, and sentencing him, as a second felony drug offender, to an aggregate term of two to four years, unanimously affirmed.

The hearing court providently exercised its discretion in reconsidering its ruling that had granted suppression of certain evidence, and in denying suppression after permitting the People to establish that there had been a typographical error in a grand jury transcript relied upon by the court when it had made its initial ruling.  In the initial ruling, the court had discredited an officer's testimony on the specific basis of a purported one-word inconsistency between the officer's hearing and grand jury testimony.  This ruling was rendered invalid by a “flaw in the proceeding” (People v. Williams, 7 N.Y.3d 15, 21, 816 N.Y.S.2d 739, 849 N.E.2d 962 [2006]), in that the court made its determination on a transcript later found to be objectively and undisputedly inaccurate.  The new information that the grand jury stenographer had inaccurately transcribed the single word at issue only “increased the likelihood that the motion to suppress would be decided correctly, based on the best available evidence of what really happened” (id. at 20, 816 N.Y.S.2d 739, 849 N.E.2d 962).  The considerations of finality and the risk of tailoring evidence discussed in People v. Kevin W., 22 N.Y.3d 287, 980 N.Y.S.2d 873, 3 N.E.3d 1121 (2013) and People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269 (1978) were minimal or nonexistent because the grand jury stenographer made an essentially ministerial correction and did not present any new evidence on the underlying suppression issues.

The court's ultimate ruling, which denied suppression, was supported by the record.  There is no basis for disturbing the court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977]).