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People v. Gallicchio

Other Lower Courts

September 6, 2001

The People of the State of New York, Plaintiff,
v.
Anthony Gallicchio, Defendant.

Page 183

COUNSEL

Carlin & Rothstein, New York City (Eric E. Rothstein of counsel), for defendant.

Jeanine Ferris Pirro, District Attorney of Westchester County, White Plains (Robert K. Sauer and Amy S. Carpiniello of counsel), for plaintiff.

OPINION

Lester B. Adler, J.

The defendant stands accused under indictment No. 01-0300 of attempted disseminating indecent material to minors in the first degree (Penal Law §§ 110.00, 235.22) and attempted patronizing a prostitute in the third degree (Penal Law §§ 110.00, 230.04). By notice of motion dated April 19, 2001, with accompanying affirmation, the defendant moves for omnibus relief. In response, the People have submitted an affidavit in opposition dated May 21, 2001, with accompanying memorandum of law. In response, the defendant submitted a reply affirmation dated June 5, 2001.

It is alleged that on or about and between December 21, 2000 and January 12, 2001, while using a computer communication system, to wit, America Online (AOL), the defendant engaged a person he believed to be a minor in a series of sexually explicit on-line conversations. It is further alleged

Page 184

that during the course of these on-line conversations, the defendant offered the person he believed to be a minor money in return for sex with the defendant. This motion is disposed of as follows:

I. Motion to Dismiss the Indictment Due to Prosecutorial Misconduct in the Grand Jury

This application is denied. Dismissal of an indictment for impairment of the integrity of a Grand Jury proceeding (CPL 210.35 [5]) is an extraordinary remedy (see, People v Rosado, 212 A.D.2d 426) which requires meeting a very high and precise standard (see, People v Darby, 75 N.Y.2d 449, 455). Where dismissal on such ground is based upon prosecutorial misconduct, the instances of such misconduct must be deliberate and must not be isolated (see, People v Huston, 88 N.Y.2d 400).

It cannot be said here that the prosecutor's comments " usurped the function of the Grand Jury" (see, People v Huston, 88 N.Y.2d at 407, supra), nor that they " w[ere] part of an over-all pattern of bias and misconduct" (see, People v Huston, 88 N.Y.2d at 408, supra). As the Court of Appeals has noted:

" [N]ot every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. Typically, the submission of some inadmissible evidence will be deemed fatalonly when the remaining evidence is insufficient to sustain the indictment [citation omitted]. Likewise, isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice." (88 N.Y.2d at 409, supra [emphasis provided].)

In this case, the questioning by the prosecutor of the witness in question may have been inappropriate; however, it was nothing more than an isolated instance which in no way rendered the indictment defective. Any probable inference to the Grand Jury that this witness may have been lying in no way influenced the weight of the evidence presented to sustain the indictment. Accordingly, this branch of the defendant's motion is denied.

II. Motion to Inspect and/or Release the Grand Jury Minutes

This application is denied. Defendant argues that the indictment was also defective where (1) the People did not properly instruct the Grand Jury regarding the intent element of the crime, (2) the evidence presented before the Grand Jury was legally insufficient to support the first count of the indictment,

Page 185

to wit, the charge of attempted disseminating indecent material to minors in the first degree, and (3) the evidence presented before the Grand Jury was legally insufficient to support the second charge of the indictment, to ...


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