- May 26, 2017
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy
and Jacqueline Rosenblum of counsel), for appellant.
Frankie & Gentile, P.C., Mineola, NY (Joseph A. Gentile
of counsel), for respondent.
REINALDO E. RIVERA, J.P. L. PRISCILLA HALL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the People, as limited by their brief, from so much of an
order of the Supreme Court, Nassau County (T. Murphy, J.),
entered April 11, 2016, as granted that branch of the
defendant's motion which was to dismiss count three of
the indictment on the ground that the evidence presented to
the grand jury was legally insufficient.
that the order is reversed insofar as appealed from, on the
law, that branch of the defendant's motion which was to
dismiss count three of the indictment is denied, count three
of the indictment is reinstated, and the matter is remitted
to the Supreme Court, Nassau County, for further proceedings
on the indictment.
defendant was indicted for, inter alia, official misconduct,
in violation of Penal Law § 195.00(1), based upon an
allegation made by the complainant, that, on June 28, 2015,
at 10:35 p.m., the defendant, an off-duty Village of
Hempstead police officer, touched her breast and inner thigh,
without her consent. According to evidence presented before
the grand jury, at the time of the alleged incident, the
defendant had his police badge displayed, represented that he
was a police officer, and stated to the complainant that he
could give her a "ticket."
defendant moved, among other things, to dismiss count three
of the indictment, which charged official misconduct,
contending that the evidence presented to the grand jury was
legally insufficient in that it did not satisfy the element
that he was acting in an official capacity related to his
office. The Supreme Court granted that branch of the motion,
and dismissed count three of the indictment.
assessing the sufficiency of the evidence before a grand jury
must evaluate 'whether the evidence, viewed most
favorably to the People, if unexplained and
uncontradicted-and deferring all questions as to the weight
or quality of the evidence-would warrant
conviction'" (People v Mills, 1 N.Y.3d 269,
274-275, quoting People v Carroll, 93 N.Y.2d 564,
568; see People v Bello, 92 N.Y.2d 523, 525;
People v Swamp, 84 N.Y.2d 725, 730; People v
Manini, 79 N.Y.2d 561, 568-569; People v
Jennings, 69 N.Y.2d 103, 114; People v Warren,
98 A.D.3d 634, 635). Legally sufficient evidence is defined
as 'competent evidence which, if accepted as true, would
establish every element of an offense charged and the
defendant's commission thereof (CPL 7O.1O; see
People v Mills, 1 N.Y.3d at 274; People v
Bello, 92 N.Y.2d at 525-526; People v Swamp, 84
N.Y.2d at 730; People v Manini, 79 N.Y.2d at 568).
"In the context of a Grand Jury proceeding, legal
sufficiency means prima facie proof of the crimes charged,
not proof beyond a reasonable doubt" (People v
Bello, 92 N.Y.2d at 526; see People v Deegan,
69 N.Y.2d 976, 978-979; People v Jennings, 69 N.Y.2d
at 114). "The reviewing court's inquiry is limited
to 'whether the facts, if proven, and the inferences that
logically flow from those facts supply proof of every element
of the charged crimes, ' and whether 'the Grand Jury
could rationally have drawn the guilty inference'"
(People v Bello, 92 N.Y.2d at 526, quoting
People v Deegan, 69 N.Y.2d at 979; see People v
Ackies, 79 A.D.3d 1050, 1056).
contrary to the Supreme Court's determination, the
evidence presented to the grand jury, when viewed in the
light most favorable to the People, was legally sufficient to
establish the charge of official misconduct, including the
element that the defendant committed "an act relating to
his office" (Penal Law § 195.00; see People
v Watson,32 A.D.3d 1199, 1202; seegenerally People v Flanagan,28 N.Y.3d 644, 656-657;
People v Feerick,93 N.Y.2d 433, 445-449; People
v Moreno,100 A.D.3d 435, 436-437). Accordingly, the
court erred in ...