Stuart London for the defendant, Richard Haste.
[966 N.Y.S.2d 661] Donald Levin, Joseph Ferdenzi, Assistant District Attorneys, Office of the Bronx District Attorney.
STEVEN L. BARRETT, J.
On May 15, 2013, this Court orally granted defendant's motion to dismiss the indictment and granted the People leave to re-present the case to another Grand Jury based upon the prosecution's faulty instruction to the Grand Jury with respect to the defense of justification. This decision both formalizes and amplifies the Court's oral decision.
Prior to ruling on May 15th, this Court reviewed all of the evidence presented to the Grand Jury, including the testimony of twenty-eight witnesses and the exhibits that were received in evidence. It is clear from the evidence presented, that the dispositive issue before the Grand Jury was whether the defendant, Police Officer Richard Haste, was justified in shooting the victim, Ramarlay Graham. On this crucial issue, the Grand Jury heard testimony regarding Haste's and Graham's words and actions just prior to the shooting, as well as testimony concerning a series of radio transmissions overheard by Haste, in which fellow officers who were part of Haste's team on the day of the fatal shooting, broadcast that they saw Graham in possession of a firearm.
After the presentation of the evidence, the prosecutor instructed the Grand Jury on the law of justification; specifically, when a person, and when a police officer, may be justified in using deadly physical force. The prosecutor recited verbatim the subjective and objective components of the test for when the use of deadly force is justified as provided in the Pattern Jury Instructions (see MT: 12-16). After completing the Pattern Jury Instruction on the use of deadly physical force, the prosecutor added the following language:
What controls here is not the reasonableness of the belief of other police officers or their communications to Police Officer Haste.
What controls on the issue of justification is the reasonableness of Police Officer Haste's conduct at the time of the shooting that controls the issue in this case (see MT: 17).
The prosecutor then finished the justification section of the charge by telling the Grand Jury that, " if you find that the actions of Police Officer Haste were justified, you should vote no true bill" (see MT: 17). She then instructed the Grand Jury on the law of Manslaughter in the First and Second Degrees, and the grand jurors began their deliberations (see MT: 17-19). Sometime thereafter, the grand jurors informed the prosecutor that they wanted to again hear the instruction on justification (see MT: 21). The prosecutor then repeated the charge she had previously given, including the above-quoted indented passage (see MT: 27), and again instructed the grand jurors that if they found the actions of Officer Haste to be justified, they should vote no true bill (see MT: 27). Immediately thereafter, prior to resuming deliberations, a grand juror requested the prosecutor to repeat " the last part ... about the communications of other officers" (see MT: 27). The prosecutor repeated, " it is not the reasonableness of the beliefs of other officers that was communicated to Police Officer Haste that controls the issue of justification, it is the reasonableness of Police Officer Haste's conduct at the time of the shooting that is the issue [966 N.Y.S.2d 662] (that) controls the issue of justification" (see MT: 27). The prosecutors then exited the Grand Jury room and the grand jurors resumed their deliberations. Sometime thereafter, the Grand Jury notified the prosecutors that they had voted to indict defendant on both charges, rejecting the defense of justification (see MT: 28).
The primary function of the Grand Jury 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, 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140 (1980). It light of the role of the Grand Jury in our system, the rules regarding the instructions to Grand Juries have evolved. It is now axiomatic that a Grand Jury need not be instructed with the same degree of precision as a petit jury; however, when the instructions are so incomplete or misleading that they undermine the grand jury's function to protect citizens from potentially unfounded prosecutions, a court is justified in dismissing the indictment on grounds that the Grand Jury's integrity has been impaired. See People v. Calbud, 49 N.Y.2d at 394-6, 426 N.Y.S.2d 238, 402 N.E.2d 1140.
Here, the paragraph that the prosecutor inserted after she recited the Pattern Jury Instruction on the justifiable use of deadly physical force was both incomplete and had the unintended effect of misleading the Grand Jury— as I referenced in my oral opinion, an error of omission as well as of commission.
With respect to the first sentence of the troublesome passage, the prosecutor stated that " what controls here is not the reasonableness of the belief of other officers or their communications to Police Officer Haste " (MT: 17, 27) (emphasis supplied). When the words of this sentence are scrutinized closely, the unavoidable conclusion is that the grand jurors were led to believe that the communications of fellow officers to Police Officer Haste were of no consequence to the claim of justification. Thus, contrary to the People's contention, this instruction was tantamount to telling the Grand Jury that, in deciding whether Haste's beliefs at the time of the shooting were reasonable and thereupon whether his actions were justified, they were not to consider any communications of the fellow officers to Haste regarding their alleged observation of Graham with a gun. This was error; the communications to Police Officer ...