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People v. Elias

Supreme Court, Queens County

January 25, 2017

The People of the State of New York
v.
Jesse Elias, Defendant.

          The People by: ADA Katherine McCabe Queens County District Attorney's Office

          The Defendant by: Yesy Sanchez, Esq.

          Gene R. Lopez, J.

         Defendant, Jesse Elias, has submitted an omnibus motion dated December 21, 2016, seeking: Discovery and a Bill of Particulars; inspection and release of the Grand Jury Minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence; Sandoval relief; and reservation of rights. The People's response, filed January 3, 2017, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

         Defendant's motion to inspect the Grand Jury minutes is granted. Upon inspection, for the reasons that follow, this court grants the defendant's motion to dismiss the indictment and grants the People leave to re-present to another Grand Jury.

         The Court of Appeals stated in People v Huston, 88 N.Y.2d 400, 409 (1996) that "[d]ismissal of indictments under CPL 210.35(5) [1] should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. 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." During this presentation, the prosecutor [2] committed fundamental errors such as usurping the fact finding role of the grand jurors, acting as an unsworn witness, improperly delegating instructions as to the law to a police witness and improperly introducing documents.

         Before the Grand Jury, Police Officer Lucas McDonald stated that the defendant consented to take the breathalyzer test and that the results from that test was.194 of one percentum or more by weight of alcohol in his blood. The prosecutor then asked Police Officer McDonald "[w]hat are the levels of blood alcohol content?" Police Officer McDonald stated: ".08 is considered driving while intoxicated, a.16 is double the legal limit and.18 and above is aggravated driving while intoxicated. Mr. Elias blew a.194, which is over aggravated driving while intoxicated." The prosecutor improperly asked the police officer to state the law concerning the unlawful levels of alcohol in a motorist's blood. As a legal advisor, the prosecutor was obligated to do so during her instructions to the Grand Jurors.

         The prosecutor introduced documentary evidence that appeared to indicate that the defendant had been convicted on or about October 2, 2009, of violating California Vehicle Code §23152(b), driving under the influence. California Vehicle Code §21352(b) provides that "it is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."

         Vehicle and Traffic Law §1192(8) provides in relevant part:

"A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section."

         After introducing the documentary evidence, the prosecutor stated:

"Ladies and Gentlemen of the Grand Jury, I now charge all of you that the defendant [sic] convictions under Count (02) I just shared with you off the Certification of Disposition of the Supreme Court of California Count [sic] of Los Angeles Count (02) being Vehicle Code 23152B and this Vehicle Code 23152B contains the same element required by New York State Vehicle and Traffic Law 1192 as required by State statute I will be charging you with that law."

         Immediately after this instruction, a Grand Juror asked whether "[t]he violation that you read from California are they all driving ...


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