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Fiandach & Fiandach (Rochester NY)


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February 13, 2008

A sad fact is that the number of motorists charged with alcohol related operating offenses remains extremely high.  Although two months remain in 1994, some counties are reporting a record numbers of arrests.  While some may maintain that motorists are simply not getting the message, this phenomenon is most likely due in large part to aggressive law enforcement procedures.  When coupled with tough plea bargaining policies and the unfortunate number who quickly plead guilty, the effect has been to cause the number of motorists at risk for felonies to swell dramatically.

This week we'll look at the indictment and some thornier issues that certain procedural twists may bring.

For the Grand Jury to indict, there must be "legally sufficient" evidence of the offense for which it has indicted (People v Calbud, Inc., (1980) 49 NY2d 389, 394, 426 NYS2d 238; CPL '190.65[1]; [for a discussion of "legally sufficient evidence" see, NY DWI Bulletin No. 1, Vol. 1]).  Generally, an indictment will be considered to be founded upon "legally sufficient evidence" unless there occurs error sufficient to destroy the integrity of the process (People v. Calbud, Inc., supra).

Initially, neither counsel nor the Defendant, unless he or she chooses to testify, is a party to the process.  Therefore, when moving to dismiss one is forced, to a large extent, to shoot in the dark.  This usually results in the filing of motion papers that contain a "laundry list" of possible errors.  In no specific order these include: whether the Grand Jury was fully instructed on the nature of statutory presumptions (People v. Williams, (1988, 2nd Dept) 136 AD2d 132, 526 NYS2d 581); whether a proper quorum was present and whether the 12 jurors who voted to indict heard all the "critical and essential evidence presented" (People v. Collier, (1988) 72 NY2d 298 532 NYS2d 718); whether complete defenses, such as operation, were properly charged (People v. Dymond, (1993, Greene Co Ct) 158 Misc2d 677, 601 NYS2d 1001; and see, People v. Lancaster (1986) 69 NY2d 20, 511 NYS2d 559); whether the defendant's admissions were properly corroborated (CPL '60.50; People v. Booden, (1987) 69 NY2d 185, 513 NYS2d 87); whether the instructions were either lacking or too confusing to be understood by the Grand Jury (People v. Caracciola (1990, 1st Dept) 164 AD2d 755, 560 NYS2d 133; People v. Guzman (1987, Sup Ct) 137 Misc2d 129, 520 NYS2d 117; People v. Smith (1979, 4th Dept) 72 AD2d 940, 422 NYS2d 223; compare, People v. Hager (1984, Nassau Co Ct) 124 Misc2d 123, 476 NYS2d 442); whether the Grand Juror's were properly instructed as to what constitutes "legal sufficiency" (People v. Batashure (1990) 75 NY2d 306, 552 NYS2d 896); whether the defendant was denied his or her right to testify before the Grand Jury (People v. Evans, (1992) 79 NY2d 407, 583 NYS2d 358); People v. Ralim Bey‑Allah, (1987, 1st Dept) 132 AD2d 76, 521 NYS2d 422); whether the integrity of the Grand Jury proceedings was impaired because there was a hiatus between the time the Grand Jury was instructed on the applicable standards of proof and the time the Assistant District Attorney presented testimony and submitted the relevant charges (People v. Alarcon (1991, 2nd Dept) 184 AD2d 514, 584 NYS2d 191); whether the defendant was denied his right to request that the prosecutor call witness on his or her behalf (CPL '190.50(6); see, generally, Relin v. Maloy, (1992, 4th Dept) 182 AD2d 1142, 583 NYS2d 103; and see, People v. Puluso, (1992, 2nd Dept) 182 AD2d 783, 582 NYS2d 778 [defendant must name witnesses to be called]); whether the predicate offense was properly established (see, People v. Van Buren, (1993) 82 NY2d 881, 609 NYS2d 170; and see, People v. O'Bannard, NYLJ 5/20/95, p. 21); whether the grand jurors were properly sworn (CPL '190.20[4]); whether the rules of evidence were properly complied with (see, CPL '190.30 [applying "the rules of evidence applicable to civil cases"].

Amendment of an indictment can pose difficulties worthy of close examination.  Amendment of an indictment is regulated by CPL '200.70.  In relevant part, this section provides that "[a]t any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the Grand Jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits."  In a direction that to a certain extent seems superfluous, subdivision (2) provides: "An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the Grand Jury which filed it; nor may an indictment or superior court information be amended for the purpose of curing: (a) A failure thereof to charge or state an offense; or (b) Legal insufficiency of the factual allegations; or (c) A misjoinder of offenses; or (d) A misjoinder of defendants.

What however, separates theory from mere form?  In People v. Levy (1993, Kings Co Sup) 157 Misc2d 941, 599 NYS2d 898, count five of the indictment charged the defendant with leaving the scene of an incident without reporting (see, Vehicle and Traffic Law '600(2)[a]).  This section, in relevant part, provides that "[a]ny person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his license and insurance identification card ... give his name, residence ... and [other enumerated] information ... to the injured party, if practical, and also to a police officer."  The facts showed that after a collision the defendant fled the scene on foot.  The evidence at trial established that the operator of the second vehicle did not sustain any personal or physical injury as a result of the collision.  Finding that a prerequisite to finding a defendant guilty under either subdivision is that the victim actually sustain personal injury to enable a finding that the defendant "should have known" the nature of the injuries inflicted, the Court found "this discrepancy affected the theory of the prosecution rather than simply form."

In People v. Amodio, (1982, Erie County Sup) 115 Misc2d 569, 454 NYS2d 511, the defendant was indicted for Driving While Intoxicated (Vehicle and Traffic Law ''1192[2] and 1192[3]) as felonies.  The indictment upon which he was arraigned specified that the offenses occurred on December 14, 1982, when in fact they occurred on December 14, 1981.  Thereafter, the People moved to amend to set forth the correct date.  Granting the motion, the Court held: "the evidence presented to the Grand Jury . . . concerned the defendant's alleged criminal activities on the date of December 14, 1981.  The proposed amendment, therefore, would not change the theory or theories of the prosecution as reflected in the evidence before the Grand Jury that filed the indictment, and does not otherwise tend to prejudice the defendant."

In People v Clapper, (3rd Dept. 1986) 123 AD2d 484, 506 NYS2d 494 the indictment alleged that the defendant violated Vehicle and Traffic Law '1192 on "State Route 7."  The People's  Bill of Particulars described the offense as occurring on State Route 30. After commencement of trial but prior to calling any witnesses, the People successfully moved to amend the indictment to charge that the offense occurred on Route 30.  On appeal the Third Department affirmed the holding of the Trial Court: "CPL '200.70(1) allows amendment of an indictment any time during or before trial so long as the amendment does not prejudice the defendant on the merits."  Although the location was described as "less than four miles" from the location set out in the indictment, the Bill of Particulars turned out to be the People's saving grace.  Since it "indicated that the crime occurred on Route 30, not Route 7 as charged in the indictment * * * [d]efendant was thus aware that the People planned to prove that the crime occurred on Route 30 [and] accordingly, he was not prejudiced by the amendment."

In People v Miller, (3rd Dept. 1990) 163 AD2d 627, 558 NYS2d 269, the indictment alleged that the defendant had operated a motor vehicle in an intoxicated condition at approximately 10:20 p.m. on November 12, 1988 on Cotton Hill Road at Posson Hill Road in the Town of Middleburgh, Schoharie County.  The facts at trial reasonably showed that shortly before 10:00 p.m., the defendant's friend, Porter, decided to replace an outside lightbulb. The proof further showed that the defendant drove Porter to a nearby residence on Posson Hill Road to borrow a ladder.  Defendant acknowledged that he had driven on this portion of the trip but testified that Porter was driving on the way back when an accident occurred at Cotton Hill and Posson Roads and Porter was killed.  On appeal, the Defendant contended that the Trial Court's charge to the jury that permitted them to consider the trip to the Posson Hill residence was error since it fell outside the scope of the indictment and materially changed the theory of the prosecution.  Rejecting this contention, the Third Department held: "The two relevant counts, aggravated unlicensed operation of a motor vehicle and driving while intoxicated, are both crimes of a continuing nature.  The variances in time and location were not material and were, in fact, part and parcel of the same trip with the first portion occurring only minutes before the accident where Cotton Hill and Posson Roads intersect each other.  The entire trip was clearly embraced within the indictment.  The charge did not change the prosecution's theory of which defendant was given fair notice, and neither surprised nor prejudiced defendant" (Miller at 628-629).

Concededly, figuring out whether an amendment is one of mere form or is a change in the theory is not always easy.  Perhaps the best way to resolve this question is to determine whether the "new theory" was presented to the Grand Jury.  In People v. Johnson (1990, 2nd Dept) 163 AD2d 613, 559 NYS2d 41, the indictment charged robbery in the first degree by alleging that at the time of the robbery the defendant "was armed with a deadly weapon to wit: hand gun or revolver."  Shortly before trial the People were permitted to amend the indictment to charge that the defendant "displayed what appeared to be a pistol or a revolver."  Finding that the amendment was proper, the Second Department observed: "the prosecution's theory of the case was that the defendant had committed the robbery by displaying what appeared to be a gun.  Moreover, the amendment conformed the indictment to the evidence that was presented to the Grand Jury and accurately reflected the criminal act for which the Grand Jury intended to indict the defendant."  In People v. Roberts, (1990, 3rd Dept) 163 AD2d 690, 558 NYS2d 296, county court granted an order amending the indictment to include asphyxia by strangulation as a cause of death.  On appeal the defendant alleged that the amendment was improper.  Finding the county court acted properly with respect to the indictment, the Third Department noted:  "The evidence before the Grand Jury demonstrated that the victim died from asphyxia caused by 'traumatic compression' of the neck brought about by either compression of the windpipe or arteries or a direct blow to the neck.  It is clear, therefore, that the amendment did not constitute a change in the People's theory of the case as presented to the Grand Jury and, accordingly, County Court properly granted the motion."  Interesting in Roberts is that the Third Department had earlier reversed the defendant's conviction when the indictment alleged that the defendant struck the victim in the neck area with intent to cause serious injury but proved strangulation at trial (135 AD2d 1026, 1029, affd 72 NY2d 489).  Finding no inconsistency, the Court remarked: "Our conclusion is consistent with this court's earlier reversal * * * .  There, the prosecution impermissibly altered their theory of the case at trial from that charged in the indictment and thereby deprived defendant of sufficient notice thereof."

How does one amend an indictment?  Procedurally it is a rather uncomplicated affair.  A motion, an oral one will due, on notice to the defendant, will generally suffice.  While the statute permits an amendment at trial, this procedure is not to be preferred since if granted "the court must, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense."

Not to be confused with amendment is the concept of resubmission.  Here the propriety of the change is based upon the evidence presented to the Grand Jury but, as we will see, with dramatically different results.

Resubmission is essentially controlled by CPL '190.75.  This section entitled "Grand jury; dismissal of charge," provides in pertinent part that: "1. If upon a charge that a designated person committed a crime, either (a) the evidence before the Grand Jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the Grand Jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. * * * 3. When a charge has been so dismissed, it may not again be submitted to a Grand Jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another Grand Jury. If in such case the charge is again dismissed, it may not again be submitted to a Grand Jury."

Of grave misfortune, this section provides little guidance in determining when a matter may be resubmitted, such direction being left entirely to case law.  As we have noted elsewhere, "[a]n application for resubmission must be accompanied by sufficient facts demonstrating the exercise of discretion and, at a minimum, should demonstrate the existence of new facts or evidence, which facts or evidence could not, with the exercise of due diligence, have been known at the time of the original presentment (Fiandach, NY DWI, '11:11, citing, People v. Dykes (2nd Dept, 1982) 86 AD2d 191, 449 NYS2d 284; People v. Anderson (2nd Dept, 1988) 143 AD2d 192, 531 NYS2d 638; People v. Washington (1986, 4th Dept) 125 AD2d 967, 510 NYS2d 402, app den 69 NY2d 887, 515 NYS2d 1036; People v. Zirpola (1982, 4th Dept) 88 AD2d 758, 451 NYS2d 483).  As noted by the Second Department in Dykes: [The Grand Jury] is empowered, indeed required, to dismiss a charge that a designated person committed a crime if the evidence before it is not legally sufficient to establish that such person committed such crime or other offense, or it 'is not satisfied' that there is reasonable cause to believe that such person committed such crime or any other offense. * * * Such a finding by the Grand Jury is justly entitled to great weight and prosecutors and Judges are not privileged to substitute their judgment for that of the Grand Jury.  Indeed, a determination by the Grand Jury that the evidence before it does not warrant an indictment should end the matter and there should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission; that the Grand Jury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the Grand Jury otherwise acted in an irregular manner" (Dykes, at p. 195).

Recently, in People v. Jacob, - Misc2d -, - NYS2d - 1994 N.Y. Misc. LEXIS 301, the Kings County Supreme Court had an opportunity to revisit this difficult front.  In Jacob, the victim was struck and suffered severe injuries as she was crossing at a marked intersection.  A Breathalyzer test of the Defendant revealed a .13 blood alcohol content.  Upon hearing the matter, the Grand Jury was instructed as to Assault in the Second Degree, Vehicular Assault in the Second Degree, Reckless Endangerment in the Second Degree and two counts of Driving While in an Intoxicated.  The defendant was indicted solely for Driving While Intoxicated.  Of importance, medical records of the victim were read into the record before the Grand Jury.  These records showed that the victim suffered "multiple fractures to her ribs, legs, and blood from both ears."  Surprisingly, the Grand Jury voted a no bill as to all but the two DWI counts, for which it directed the prosecutor to file a prosecutor's information.  On March 4, 1993, the victim died, apparently as a result of the injuries suffered when she was struck by defendant's car.  Thereafter, the prosecutor sought to resubmit the matter, this time as a homicide.

Recognizing that Dykes controlled, Judge Michael Curci observed that "the court should not automatically accede to such request unless new evidence has been discovered since the prior submission or there is some irregularity or impropriety at the Grand Jury."  The "new evidence," of course, consisted solely of  the death of the victim from the injuries suffered after having been struck by defendant's automobile.  This, held the Jacob court, would simply not be enough.  Recall that the Grand Jury that heard the evidence in the case was instructed on the law as it concerns Assault in the Second Degree and Vehicular Assault in the Second Degree.  An indictment for either charge would have required a finding that the defendant "recklessly engaged in conduct which creates a substantial risk of serious physical injury to another person" (Penal Law '120.20).  Since they also no billed the Defendant on the charge of Reckless Endangerment, an offense that requires "a substantial risk of serious physical injury" and not actual serious physical injury, the Court concluded that the decision not to indict for the Penal law offenses was conclusive evidence that sufficient proof of the culpable mental state and not of the serious injuries was lacking.

The death of the victim, while unfortunate, did nothing to enhance the failure of the Grand Jury to find the necessary culpable mental state.  "The Grand Jury having rejected that defendant acted 'recklessly' or with 'criminal negligence', the People failed to show that the death of the victim, in and of itself would have changed the result.  The court refuses to upset the 'great weight' to be accorded a Grand Jury's decision in light of the evidence presented and instructions given to the Grand Jury" (Jacob, supra).

The result in Jacob discloses a strange anomaly in the law.  Citing the well‑known exception to Double Jeopardy, the Court noted somewhat ironically that if the Defendant had been convicted of assault prior to the death of the victim, CPL '40.20(2)(d) would have permitted him to be reprosecuted for the homicide despite the previous assault prosecution (see, Diaz v. United States, 223 US 442, 56 LEd 500, 32 SCt 250).  However, since a Grand Jury proceeding is not a prosecution, CPL '40.20 does not apply.

To be considered a resubmission, the Grand Jury must vote to dismiss.  Not to be confused is CPL '200.80 and the superseding indictment.  When a succeeding Grand Jury hands up an indictment  charging the defendant with an offense charged in the first indictment, it is deemed to supersede the earlier instrument and charges contained in the earlier indictment are dismissed at the time the Defendant is arraigned upon the succeeding instrument.  Unlike resubmission, leave is not required, and moreover, for CPL '30.30 speedy trial purposes, charges in the new indictment which were contained in the earlier indictment are deemed to "relate back" to the filing of the earlier instrument, both for "commencement" (People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937; People v Osgood  52 NY2d 37, 436 NYS2d 213) and the calculation of "excludable time" (People v. Sinistaj (1986) 67 NY2d 236, 501 NYS2d 793).  "Relation back," however, will not apply to charges that are contained in the second but were omitted from the first (see, People v. Rodriguez) 150 AD2d 265, 541 NYS2d 423; People v. Kareem C'Allah, 100 AD2d 754, 474 NYS2d 305).

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