Order, Supreme Court, New York County (Micki A. Scherer, J.), entered on or about May 10, 2006, which dismissed the indictment with leave to re-present, reversed, the indictment reinstated, and the matter remanded for further proceedings.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Catterson, Moskowitz, Acosta, JJ.
Defendant and three others were charged with burglarizing a truck. The police had been following a minivan in which the four men were riding, when it pulled up near the truck*fn1. Two police officers testified to the grand jury that they witnessed defendant standing on the sidewalk and looking up and down the block while two of the other men removed a bag from the rear of the truck. The fourth man remained in the driver's seat. Another officer testified that he saw defendant walking back to the minivan with the other two men, one of whom was carrying the bag. A fourth officer testified that he recovered a box cutter from defendant's pocket during a search incident to his arrest.
After the grand jury returned indictments against the two men who actually removed the bag from the truck, the prosecutor informed them that defendant wished to testify. Defendant testified that he was inside the minivan when two of the men saw the truck and instructed the driver to pull over. Defendant told them to "leave it alone" but the two men ignored him and got out of the minivan. After they failed to immediately return he got out of the minivan to see what they were doing. When he saw them remove a bag from the truck he told them to "leave that alone" and went back to the minivan, where he was arrested.
The prosecutor asked the grand jury at that point to indict defendant; however, the grand jury asked if it could delay its decision until after it heard from the man who was driving the minivan, since that "would certainly potentially - be quite relevant to our decision on defendant." The prosecution assented to that request. The driver testified that defendant and another one of the men were in the minivan when they approached him and the fourth man. He was asked to drive the minivan, and, at some point, the three other men all exited the minivan at the same time, and, upon their return, were arrested. The motion court characterized certain questions asked of the driver by the grand jury as focusing on inconsistencies between his own testimony and that of defendant. This led the court to believe that the grand jury intended to rely on the driver's testimony as a factor in their deliberations regarding the defendant.
The grand jury indicted defendant on the charges of burglary in the third degree, grand larceny in the fourth degree and 10 counts of possession of burglar's tools. It declined to indict the driver. The court dismissed the indictment on the ground that the prosecutor should have instructed the jury that the driver's testimony could only be considered if there was corroborating evidence.
We agree that the prosecution should have instructed the grand jury that the driver's testimony was legally sufficient to support an indictment only if corroborated. The concurrence is incorrect that Criminal Procedure Law Section 60.22, which requires accomplice testimony to be corroborated, does not apply to this case. It applies, albeit indirectly, pursuant to CPL 190.65(1), which provides that:
"Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense." (emphasis added).
Prior to the testimony of the driver, the grand jury was apparently unsatisfied that the testimony of the four police officers provided a legally sufficient basis for indicting defendant. Indeed, the motion court, which reviewed the grand jury minutes and was in a far better position to assess the degree to which the grand jury relied on the driver's testimony, found that the grand jury considered the testimony a significant factor in whether it should indict. At the time the grand jury deliberated concerning defendant and the driver, the driver was an "accomplice" as that term is defined by CPL 60.22(2)(a); that is, "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in the offense charged." As such, his testimony, if used to convict, would have had to be corroborated. Moreover, that the driver may have been testifying in his own behalf, as opposed to for the People, is irrelevant (see People v Diaz, 19 NY2d 547, 549 ).
CPL 190.25(6) provides, in pertinent part, that "[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it." Here, because the circumstances were such that an indictment based on the driver's uncorroborated testimony would have been in contravention of CPL 190.65(1), we find that it was both necessary and appropriate for the prosecution to instruct the grand jury that it could not rely on the driver's testimony to indict defendant unless it also found there to be evidence which corroborated the testimony. Indeed, if, under the concurrence's theory, it was not necessary and appropriate to so instruct the grand jury in this case, we can think of hardly any case in which it would be necessary and appropriate to instruct a grand jury. This would render CPL 190.25(6) purposeless.
Nevertheless, we reverse the order appealed, because we find that the failure to instruct did not rise to the level of impairing the integrity of the grand jury (see People v Darby, 75 NY2d 449, 455 ); cf. People v Schwartz, 21 AD3d 304, 307 , lv denied 6 NY3d 845 ). Defendant's own testimony and the testimony of the four police officers provided sufficient evidence tending to connect defendant to ...