Calendar Date: May 22, 2013
Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for appellant.
Brian P. Barrett, Lake Placid, for respondent.
Before: Peters, P.J., Rose, Stein and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the County Court of Essex County (Meyer, J.), entered June 2, 2009, which granted defendant's motion to dismiss the indictments.
A grand jury returned three indictments charging defendant with various drug-related crimes stemming from three alleged sales of cocaine to a confidential informant. County Court granted defendant's motion to dismiss the indictments, finding that the integrity of the grand jury proceedings had been impaired (see CPL 210.35 ) due to the People's failure to adequately inquire into instances of potential grand juror bias and because the grand jury heard allegedly prejudicial evidence. The People appeal, and we reverse.
A grand jury proceeding that yields an indictment is defective when it "fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35 ). "Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury" (People v Sutherland, 104 A.D.3d 1064, 1066  [internal quotation marks and citations omitted]; see People v Tatro, 53 A.D.3d 781, 783 , lv denied 11 N.Y.3d 835 ; People v Mujahid, 45 A.D.3d 1184, 1185 , lv denied 10 N.Y.3d 814 ). "The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias" (People v Huston, 88 N.Y.2d 400, 409 ; accord People v Moffitt, 20 A.D.3d 687, 688 , lv denied 5 N.Y.3d 854 ; see People v Revette, 48 A.D.3d 886, 887 ).
Here, when the prosecutor inquired as to whether any of the grand jurors knew defendant, one of the jurors stated that she knew defendant and his mother from growing up in the area where defendant lived. When asked whether that would affect her ability to be fair in this case, the grand juror responded, "I don't think so. No." In response to further questioning by the prosecutor, the grand juror repeatedly and unequivocally indicated that her prior knowledge of defendant would not affect her judgment. Under the circumstances, we find that the prosecutor's voir dire of the grand juror was appropriate and sufficient to ensure such juror's impartiality (see People v Shol, 100 A.D.3d 1461, 1462 , lv denied 20 N.Y.3d 1103 ; People v Monserrate, 24 Misc.3d 1229 [A], *5-6, 2009 NY Slip Op 51665[U], *5-6 [Sup Ct, Queens County 2009]; see generally People v Chambers, 97 N.Y.2d 417 ; compare People v Revette, 48 A.D.3d at 887).
Also in response to the prosecutor's inquiry, one of the grand jurors stated that he had arrested defendant at least once and that defendant had made threats to his family. The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor's efforts in that regard to be inadequate, "the grand jury is presumed to have followed the prosecutor's curative instructions, dispelling any prejudice to  defendant" (People v Walton, 70 A.D.3d 871, 873 , lv denied 14 N.Y.3d 894 ; see People v Muniz, 93 A.D.3d 871, 872 , lv denied 19 N.Y.3d 965 ; People v Sandven, 287 A.D.2d 279, 280 , lv denied 97 N.Y.2d 733 ). Furthermore, given the strength of the evidence supporting the indictments, the grand juror's comment lacked the potential to prejudice the grand jury's ultimate decision (see People v Sutherland, 104 A.D.3d at 1067; People v Kidwell, 88 A.D.3d 1060, 1061 ; People v Arbas, 85 A.D.3d 1320, 1321 , lv denied 17 N.Y.3d 813 ; People v Spencer, 289 A.D.2d 877, 879 , lv denied 98 N.Y.2d 655 ). Accordingly, dismissal of the indictments was unwarranted.
Rose, Stein and Garry, JJ., concur.
ORDERED that the order is reversed, on the law, motion denied and ...