This case is not published in a printed volume and its disposition appears in a table in the reporter.
Julie A. Garcia, Esq., Essex County District Attorney (Ellen Schell, Esq., of counsel, Elizabethtown, New York; Joseph R. Brennan, Esq., Glens Falls, New York for defendant
Richard B. Meyer, J.
Omnibus motion by the defendant for dismissal of the indictment dated July 13, 2007 and for other relief in the nature of discovery and a bill of particulars, suppression and preclusion of evidence, and the scheduling of hearings in connection therewith.
Defendant is charged by a two-count indictment with having allegedly committed the crimes of criminal contempt in the first degree (Penal Law 215.51[b] ), a class E felony, and assault in the third degree (Penal Law 120.00 ), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on May 5, 2007 in the Town of Ticonderoga, Essex County, New York when the defendant is claimed to have grabbed his wife and pushed her down the stairs, causing bruises to her arms and a contusion to her head, in violation of an order of protection issued on January 21, 2007 directing him to refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense against her.
The defendant moves pursuant to CPL 210.20 (1)(b) and 210.30 for the Court to examine the Grand Jury minutes and thereafter, if appropriate, dismiss or reduce one or more counts of the indictment on the grounds that the evidence before the grand jury was insufficient to support each and every count therein. The defendant's motion to inspect the Grand Jury minutes is granted. Upon inspection, it appears that the evidence before the grand jury consisted of the testimony of the defendant's wife, the alleged victim, and the investigating police officer who obtained a written statement from her, together with copies of the relevant order of protection, photographs of the alleged victim's injuries, and a written statement she gave to law enforcement.
The defendant's wife testified that on the evening of May 5, 2007 she was at a bar in Ticonderoga, New York. She had left a note at home for the defendant to come pick her up when he was done with work. She stated to the grand jury that she drank "for quite some time" and became intoxicated. When the defendant came to the bar to pick her up she did not wish to leave and they had a "verbal argument". She did leave with the defendant and went home where the verbal argument continued. She denied that there was any kind of physical contact between her and the defendant at home.
The assistant district attorney presenting the case then questioned the alleged victim about a written statement she had given law enforcement on the night of the incident, and specifically referenced statements in that document which contradicted her oral testimony before the grand jury. She told the grand jury that her written statement to the police officer which contains a statement that the defendant grabbed her and pushed her down the stairs was "incorrect", was "not what happened", and was given when she was "highly intoxicated and confused". Ms. Duross also told the grand jury that upon returning to the bar, her friends told her "that Jason must have" caused the bruise on her head, and that she did not know who called the ambulance which ultimately took her to the hospital. She testified that her head injury was caused when she "fell down drunk" while walking back to the bar after arguing with the defendant at home, and that the multiple bruises on her arm were the result of a recent intimate relationship with another man that was "rough in nature". Additionally, she testified that as of the date of the incident both she and the defendant believed that there was no order of protection in place because a few weeks after the order of protection had been issued they had requested it be withdrawn and thought that their request had been granted.
The investigating police officer, Sergeant Mark Johns of the Ticonderoga Police Department, testified that on the evening of May 5, 2007, he was dispatched to the Burleigh House Bar in Ticonderoga in response to a call of possible domestic violence. Upon arriving at the bar, he observed the alleged victim with a large bump on her head and blood on her sweater. He accompanied her to the hospital where she was examined and released. The alleged victim, accompanied by her friend, then met with him at the police station and was interviewed. He stated that Ms. Duross smelled of alcohol, and was upset, distraught and crying, but her speech was coherent. He reduced her answers to writing, and after she appeared to read it the alleged victim signed a written statement in his presence. The statement was admitted into evidence before the grand jury, containing statements that "everything that happened to me tonight is very fuzzy", "I know Jason grabbed me and pushed me", and "I also remember that I was pushed down the stairs". In determining the sufficiency of the evidence before the grand jury, the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774, 776; People v. Labar, 221 A.D.2d 783, 784, 633 N.Y.S.2d 423, leave denied 87 N.Y.2d 923, 641 N.Y.S.2d 604, 664 N.E.2d 515; see also, CPL 70.10). A prima facie case must be presented encompassing the requisite culpable mental state (People v. Mayo, 36 N.Y.2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124; People v. Lott, 104 A.D.2d 710, 480 N.Y.S.2d 597; People v. Delameter, 96 A.D.2d 629, 464 N.Y.S.2d 878). Still, a trial court's examination of the sufficiency of the evidence is limited to
"whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference (People v. Burrell, 236 A.D.2d 240, 241, 653 N.Y.S.2d 565, 566, affirmed 92 N.Y.2d 523, 683 N.Y.S.2d 168, 705 N.E.2d 1209, citing People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079) "
Viewing the evidence here in the light most favorable to the prosecution, the evidence presented to the grand jury was legally insufficient. With certain exceptions, criminal trial rules of evidence are also applicable to grand jury proceedings (CPL 190.30; People v. Mitchell, 82 N.Y.2d 509, 605 N.Y.S.2d 655, 626 N.E.2d 630). Although CPL 60.35(1) allows a party to impeach its own witness relative to a material issue through the use of a prior contradictory statement made orally under oath or in a signed writing, the contents of such statements cannot be used as evidence in chief (CPL 60.35). Moreover, the grand jury must be so instructed (CPL 60.35) by the court or by the district attorney (CPL 190.25). No such instruction was given to the grand jury, resulting in substantial prejudice to the defendant since the only evidence implicating the defendant in the commission of the crimes charged in the indictment consisted of the wife's written statement to law enforcement (see People v. Montgomery, 22 A.D.3d 960, 803 N.Y.S.2d 228). The failure to so instruct the grand jury impaired the integrity of the grand jury proceedings, rendering the same defective (CPL 210.35) and the evidence before it insufficient to support the indictment, because the sole facts implicating the defendant are contained in the wife's written statement and the grand jury was not informed that it could not consider the contents of that statement as evidence of the defendant's guilt. The holding in People v. Darby, 75 N.Y.2d 449, 554 N.Y.S.2d 426, 553 N.E.2d 974, does not apply here because in that case the statement was one made by the defendant himself and thus constituted an admission.
Additionally, there was insufficient evidence establishing the required element of either due service of the order of protection on the defendant or that the defendant had actual knowledge of the order because he was present in court when such order was issued (see People v. McGowan, 85 N.Y.2d 985, 629 N.Y.S.2d 163, 652 N.E.2d 909; People v. Inserra, 4 N.Y.3d 30, 790 N.Y.S.2d 72, 823 N.E.2d 437). The order of protection indicates on its face that it was issued ex parte. Unlike Inserra where the defendant's name was on the signature line of the order, the signature on the signature line of the order here is illegible and the boxes preceding the lines indicating that service was executed upon the defendant and that the defendant was advised in court of the ...