Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Tunit

Supreme Court of New York, Second Department

April 26, 2017

The People of the State of New York, respondent,
v.
Marina Tunit, appellant. Ind. No. 767/11

          Law Offices of Scott B. Tulman & Associates, PLLC, New York, NY, for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Julian Joiris of counsel), for respondent.

          RANDALL T. ENG, P.J., L. PRISCILLA HALL, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered June 26, 2013, convicting her of grand larceny in the second degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another grand jury (see People v Beslanovics, 57 N.Y.2d 726); and it is further, ORDERED that pursuant to CPL 470.45, the matter is remitted to the Supreme Court, Kings County, and that court shall cause the defendant to be brought before it forthwith, at which time that court shall issue a securing order in accordance with the provisions of CPL 210.45(9).

         A grand jury indicted the defendant for grand larceny in the second degree (four counts) (Penal Law § 155.40[1]), grand larceny in the third degree (four counts) (Penal Law § 155.35[1]), and grand larceny in the fourth degree (Penal Law § 155.30[1]) based upon the defendant's alleged embezzlement of funds from the complaining witness's business. In an omnibus motion, the defendant moved, inter alia, to the dismiss the indictment on the general grounds that the legal instructions to the grand jury were legally insufficient and that the charges were not supported by legally sufficient evidence. The Supreme Court denied the defendant's motion. Following a jury trial, the defendant was convicted of grand larceny in the second degree.

         On appeal, the defendant argues, inter alia, that the grand jury proceeding was defective within the meaning of CPL 210.35(5) based on the District Attorney's failure to instruct the grand jury on the definition of joint or common owner and the defense of claim of right. Although the defendant's contention is unpreserved for appellate review (see CPL 470.05[2]; People v Brown, 81 N.Y.2d 798, 799; People v Forde, 140 A.D.3d 1085, 1087), we reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]).

         The District Attorney is required to instruct the grand jury on the law with respect to matters before it (see CPL 190.25[6]). A grand jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" and it is sufficient that "the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" (People v Calbud, Inc., 49 N.Y.2d 389, 394-395; see People v Caracciola, 78 N.Y.2d 1021, 1022). " [A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'" (People v Grant, 113 A.D.3d 875, 876, quoting People v Wilson, 228 A.D.2d 708, 709; see People v Mitchell, 82 N.Y.2d 509, 514; People v Lancaster, 69 N.Y.2d 20, 26-27; People v Valles, 62 N.Y.2d 36, 38). If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL 210.35[5]; People v Valles, 62 N.Y.2d at 38; People v Calbud, Inc., 49 N.Y.2d at 395-396).

         Viewing the evidence before the grand jury in the light most favorable to the defendant (see People v Padgett, 60 N.Y.2d 142, 144-145), we find that there was a reasonable view of the evidence warranting instructions on the definition of joint or common owner and the defense of claim of right. Penal Law § 155.00(5) provides that "[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof." Consequently, a partner may not be charged with stealing the partnership's assets from another partner (see People v Zinke, 76 N.Y.2d 8, 13). Pursuant to Penal Law § 155.15(1) "[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith." The defendant's grand jury testimony indicated that the defendant's relationship with the complaining witness was that of a partner, not an employee (see generally People v Moscato, 251 A.D.2d 352, 352-353), and that the defendant took the funds at issue under a claim of right (see People v Zona, 14 N.Y.3d 488, 492-493). Consequently, the District Attorney's failure to instruct the grand jury with respect to the definition of joint or common owner and the defense of claim of right so substantially impaired the integrity of the proceedings as to require the dismissal of the indictment (see CPL 210.35[5]; People v Caracciola, 78 N.Y.2d at 1022; People v Valles, 62 N.Y.2d at 38; People v Grant, 113 A.D.3d at 875; People v Samuels, 12 A.D.3d 695, 698-699).

         In light of our determination, we need not reach the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.