Opinion
2021–05662 Ind. No. 319/20
08-24-2022
The PEOPLE, etc., appellant, v. Christopher PALMA, respondent.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley, Yael V. Levy, and Jason R. Richards of counsel), for appellant. Martello & LaMagna, P.C. (Stephen W. LaMagna and Jillian S. Harrington, Staten Island, NY, of counsel), for respondent.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley, Yael V. Levy, and Jason R. Richards of counsel), for appellant.
Martello & LaMagna, P.C. (Stephen W. LaMagna and Jillian S. Harrington, Staten Island, NY, of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Nassau County (Robert G. Bogle, J.), entered June 29, 2021, which granted that branch of the defendant's motion which was to dismiss the indictment, with leave to re-present the matter to a new grand jury.
ORDERED that the order is affirmed.
The charges against the defendant arise from a July 2019 incident, in which a speedboat operated by the defendant was involved in a collision with a jet ski. The operator of the jet ski sustained fatal injuries as a result of the collision.
The People presented the matter to a grand jury, which returned a true bill on charges of manslaughter in the second degree, criminally negligent homicide, assault in the second degree, and reckless operation of a vessel. The defendant moved, among other things, to dismiss the indictment, inter alia, based on purported deficiencies of the grand jury proceeding. The Supreme Court granted that branch of the motion on that ground, with leave to re-present the matter to a new grand jury, and the People appeal.
"The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution" ( People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140 ). "[A] prosecutor, in presenting evidence and potential charges to a grand jury, is ‘charged with the duty not only to secure indictments but also to see that justice is done’ " ( People v. Morel, 131 A.D.3d 855, 859, 17 N.Y.S.3d 102, quoting People v. Huston, 88 N.Y.2d 400, 406, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [internal quotation marks omitted]).
A grand jury proceeding is "defective," warranting dismissal of the indictment, only where the "proceeding ... 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] ; see People v. Burch, 108 A.D.3d 679, 680, 968 N.Y.S.2d 592 ). "The ‘exceptional’ remedy of dismissal of an indictment is warranted only where prosecutorial misconduct, fraudulent conduct, or errors created a possibility of prejudice" ( People v. Addimando, 197 A.D.3d 106, 121, 152 N.Y.S.3d 33, quoting People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; see People v. Burch, 108 A.D.3d at 680, 968 N.Y.S.2d 592 ).
Here, as the Supreme Court found, the grand jury proceeding was impaired by, among other things, the failure of the People to present complete information as to the navigational laws and rules that potentially bore on the defendant's culpability (see 33 CFR 83.04 – 83.09 ), and by the introduction of opinion testimony by a lay witness employed by a jet ski tour company without any limiting instruction (see People v. Reddick, 164 A.D.3d 526, 527, 82 N.Y.S.3d 79 ; cf. People v. Gambale, 158 A.D.3d 1051, 1053, 70 N.Y.S.3d 684 ). In addition, the People failed to provide to the grand jury the complete charge as to the count of criminally negligent homicide (see CJI2d [NY] Penal Law § 125.10 ; see also People v. Cabrera, 10 N.Y.3d 370, 858 N.Y.S.2d 74, 887 N.E.2d 1132 ). Therefore, the court properly granted that branch of the defendant's motion which was to dismiss the indictment, with leave to re-present the matter to a new grand jury (see People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; see also People v. Blauvelt, 156 A.D.3d 1333, 1335, 68 N.Y.S.3d 784 ; People v. Gordon, 101 A.D.3d 1473, 1475–1476, 956 N.Y.S.2d 674 ).
CONNOLLY, J.P., ROMAN, FORD and WAN, JJ., concur.