Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Kent D. SPRATLEY, Defendant–Appellant.
Christopher Jude Pelli, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
Christopher Jude Pelli, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
We previously held this case, reserved decision and remitted the matter to County Court to rule on defendant's renewed pretrial motion to dismiss the indictment “based on allegedly prejudicial conduct during the grand jury proceeding,” i.e., the presentation of testimony concerning handguns found in a bag in the trunk of defendant's vehicle ( People v. Spratley, 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361). We determined in our prior decision that defendant's remaining contentions on the appeal from the judgment of conviction after a nonjury trial lacked merit ( id. at 1420–1421, 946 N.Y.S.2d 361). Upon remittal, the court denied the motion, and we now affirm.
Defendant contended in support of his renewed motion to dismiss the indictment that certain testimony of a police investigator regarding the handguns was not relevant and was prejudicial. A court may, upon the motion of a defendant, dismiss an indictment on the ground that the grand jury proceeding was “defective” (CPL 210.20[1][c] ). A grand jury proceeding is defective when “the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5]; see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362). There “must be an articulable ‘likelihood of’ or at least ‘potential for’ prejudice” ( People v. Adessa, 89 N.Y.2d 677, 686, 657 N.Y.S.2d 863, 680 N.E.2d 134;see Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362). Dismissal of an indictment is “limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury” ( Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362).
Here, contrary to defendant's contention, there was no error in the presentation of the testimony regarding the handguns during the grand jury proceeding. The victim testified before the grand jury that defendant pulled a handgun from his waistband, and the victim then heard a “bang” and realized he had been shot. The grand jury testimony that handguns were found in a bag in defendant's abandoned vehicle two hours later was thus relevant. In any event, even if the testimony was inadmissible, we agree with the court that there was no reason to dismiss the indictment. Indeed, “ ‘not every ... elicitation of inadmissible testimony ... renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment’ ” ( People v. Jeffery, 70 A.D.3d 1512, 1513, 894 N.Y.S.2d 797, quoting Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362;see People v. Peck, 96 A.D.3d 1468, 1469, 946 N.Y.S.2d 334), which is not the case here.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.