Opinion
197 KA 15–00950
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Steven R. ALEXANDER, Defendant–Appellant.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ), defendant contends that the prosecutor's justification instruction to the grand jury rendered the proceeding defective and thus that County Court erred in refusing to dismiss the indictment (see generally CPL 210.20[1][c] ). Although the People correctly concede that the instruction was erroneous, we nevertheless conclude that dismissal is not required because the error did not impair the integrity of the grand jury proceeding with respect to the sole count of the indictment to which defendant ultimately pleaded guilty.
"A grand jury proceeding is defective ... when[, inter alia, it] fails to conform to the requirements of [CPL] article [190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" ( CPL 210.35[5] ). Consistent with the general rule that "each count in an indictment is to be treated as if it were a separate indictment" ( People v. Ardito, 86 A.D.2d 144, 163, 449 N.Y.S.2d 202 [1st Dept. 1982], affd for reasons stated 58 N.Y.2d 842, 460 N.Y.S.2d 22, 446 N.E.2d 778 [1983] ), impairment and prejudice must be evaluated on a count-by-count basis (see People v. Keller, 214 A.D.2d 825, 825–826, 625 N.Y.S.2d 325 [3d Dept. 1995] ; see generally People v. Montanez, 90 N.Y.2d 690, 693, 665 N.Y.S.2d 62, 687 N.E.2d 1345 [1997] ). Although some errors affect the entire grand jury presentation and require dismissal of all counts of an indictment (see People v. Connolly, 63 A.D.3d 1703, 1704–1705, 881 N.Y.S.2d 257 [4th Dept. 2009] ), other errors are more limited and affect only certain counts (see Keller, 214 A.D.2d at 825–826, 625 N.Y.S.2d 325 ).
Here, defendant pleaded guilty to criminal possession of a weapon in the second degree under count two of the indictment in full satisfaction of all seven counts thereof. The remaining six counts were dismissed by operation of law (see CPL 220.30[2] ), and further prosecution thereon is barred (see CPL 40.20[1] ; 40.30[1][a] ). Thus, to secure relief in this appeal, defendant must demonstrate that the erroneous justification instruction impaired the integrity of the grand jury proceeding and potentially prejudiced him with respect to count two (see Keller, 214 A.D.2d at 825–826, 625 N.Y.S.2d 325 ; see generally People v. Welch, 2 A.D.3d 1354, 1356, 770 N.Y.S.2d 230 [4th Dept. 2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2004] ). Any impairment or potential prejudice with respect to the other counts is academic because those counts "were ultimately dismissed" ( People v. Chilson, 285 A.D.2d 733, 734, 728 N.Y.S.2d 550 [3d Dept. 2001], lv denied 97 N.Y.2d 640, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001], reconsideration denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002] ; see People v. Mehmood, 112 A.D.3d 850, 855, 977 N.Y.S.2d 78 [2d Dept. 2013] ).
Defendant failed to establish that the erroneous justification instruction either impaired the integrity of the grand jury proceeding or potentially prejudiced him with respect to count two inasmuch as the statutory defense of justification is inapplicable to the crime of criminal possession of a weapon, in any degree (see People v. Pons, 68 N.Y.2d 264, 265–268, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ; People v. Almodovar, 62 N.Y.2d 126, 130–131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ). Defendant's contrary assertion, i.e., that a correct justification instruction could have negated the "intent to use unlawfully" element of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1] ), was explicitly rejected by the Court of Appeals in Pons (see id. at 266–268, 508 N.Y.S.2d 403, 501 N.E.2d 11 ). Defendant's claim of spillover prejudice, i.e., his supposition that the grand jury would not have indicted him on count two had it been properly instructed on the justification defense applicable to other counts, is wholly speculative and does not satisfy his "burden to demonstrate ... the existence of defects impairing the integrity of the [g]rand [j]ury proceeding and giving rise to a possibility of prejudice" ( Welch, 2 A.D.3d at 1356, 770 N.Y.S.2d 230 [internal quotation marks omitted] ). Moreover, defendant's claim of spillover prejudice assumes that the grand jury ignored its sworn obligation to find sufficient evidence of his "intent" to use a weapon unlawfully before returning an indictment for criminal possession of a weapon in the second degree ( § 265.03[1] ), an element that cannot be negated with a defense of justification. As the Court of Appeals observed in Pons, "intent to use and use of force are not the same, and justification, by the very words of the statute ( Penal Law § 35.15 ), is limited to the latter" ( id. at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ). Thus, the faulty justification instruction did not impair the integrity of the grand jury proceeding or potentially prejudice defendant with respect to count two (see People v. Roach, 147 A.D.3d 1423, 1423–1424, 46 N.Y.S.3d 373 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. Flores, 219 A.D.2d 40, 45, 640 N.Y.S.2d 20 [1st Dept. 1996] ).
We note that the certificate of conviction incorrectly reflects that defendant was charged in count seven of the indictment under Penal Law § 120.10(1), and it must therefore be amended to reflect that he was charged under § 120.10(4). Contrary to defendant's contention, no further correction of the certificate is required. Finally, we do not address defendant's remaining contentions because defense counsel withdrew them at oral argument of this appeal.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.