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People v. R.P.

Supreme Court, Monroe County

August 17, 2017

People of the State of New York, Plaintiff,
v.
R.P. and M.R., Defendants.

          For the People: CHRISTINE CALLANAN, ESQ. Assistant District Attorney

          For Defendant R.P.: PAUL GUERRERI, ESQ

          For Defendant M.R.: MARK CIANCA, ESQ.

          Alex R. Renzi, Justice of the Supreme Court.

         Pursuant to § 210.30 of the Criminal Procedure Law, the defendants have moved the Court to inspect the Grand Jury minutes and dismiss or reduce the indictment in the above-entitled case, upon the grounds that the evidence before the Grand Jury was not legally sufficient to establish the commission of the offenses charged in the Indictment.

         Further said motions seek to dismiss the indictment on various grounds alleging that Grand Jury proceedings were defective. Defendants are each charged within the indictment of one count of assault in the second degree in violation of Penal Law §§ 20.00 and 120.05, subd. 4; and one count of reckless endangerment in the second degree in violation of Penal Law §§ 20.00 and 120.20.

         The indictment is based on an incident which occurred on October 11, 2016 in the Town of Parma. On that date the defendants were engaged in shooting long guns at a bulls-eye target placed in a field along a line of trees. In another field some distance away an individual, identified as Kevin Flannery, who was operating a riding lawn mower, was struck with one of the bullets. The bullet first struck the seat of mower and ricocheted into Flannery. Mr. Flannery suffered serious injury as a result of the wound, requiring extensive hospitalization and medical treatment.

         Evidence submitted to the grand jury included testimony from Mr. Flannery, Monroe County Sheriff's Investigator Branagan and other deputies, and presentation of various photographs, including aerial pictures of the scene of the incident.

         In the context of a motion to dismiss an indictment, the sufficiency of the People's presentation "is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury." People v. Jennings, 69 N.Y.2d 103, 114 (1986). The People are required to make out a prima facie case that the accused committed the crimes charged by presenting legally sufficient evidence establishing all of the elements of the crime. Jennings, at 115. On a motion to dismiss, the reviewing court's inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy. Indeed, "all questions as to the quality or weight of the proof should be deferred" (id., at 115). Legal sufficiency means competent evidence which, if accepted, would establish every element of the offenses charged and the defendants' commission thereof. CPL § 70.10 (1); See People v. Bello, 92 N.Y.2d 523 (1998); and People v. Mikuszewski, 73 N.Y.2d 407 (1989).

         On a motion to dismiss an indictment on the ground that the Grand Jury proceedings were defective by reason of the prosecutor's legal instructions or failure to given certain instructions to the Grand Jury, this court notes that "a Grand Jury need not be instructed with the same degree of precision" required for a petit jury. People v. Calbud, 49 N.Y.2d 389, 394 (1980). The prosecutor possesses similar discretion as a trial judge in giving legal instructions to the Grand Jury. CPL § 190.30 [7]; People v. Darby, 75 N.Y.2d 449, 454 (1990); and People v. Santmyer, 255 A.D.2d 871 (Fourth Dept., 1998), lv denied 93 N.Y.2d 902 (1999). Moreover, the prosecutor is not required to seek out evidence favorable to the defendant or present all their evidence tending to exculpate the accused. People v. Mitchell, 82 N.Y.2d 509, 515 (1993); People v. Lancaster, 69 N.Y.2d 20, 27 (1986); and People v. Valles, 62 N.Y.2d 36, 38 (1984). Generally, it is sufficient if the prosecutor "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, supra, at 394-395; and People v. Douglas, 288 A.D.2d 859 (Fourth Dept., 2001), lv denied 97 N.Y.2d 681 (2001). See generally, People v. Galatro, 84 N.Y.2d 160, 163-164 (1994).

         This court has examined the Grand Jury minutes using the standards as set forth above.

         Initially, review of the Grand Jury minutes reveal that the Grand Jury proceeding was not defective by reason of any improper, incomplete or incorrect legal instructions given to the Grand Jury nor any other defect in the way the proceedings were conducted. Further, this court finds that the evidence and legal instructions were submitted to a legally constituted Grand Jury. Thus, the defendant's motion to dismiss the indictment under CPL § 210.35 is denied.

         However, with respect to the defendant's motion pursuant to CPL § 210.30 to dismiss the indictment on the ground of the insufficiency of the grand jury evidence, the Court is compelled to reach a different conclusion, and, for the reasons set forth below, dismisses the indictment in its entirety as to both defendants.

         The facts appear to present a case of first impression. A thorough search of relevant case law offers no instances where a defendant has been held criminally liable for firing a long gun in the direction of an open field, striking an individual a substantial distance away, and where the presence of the victim was not apparently visible to the shooter. Instead, the majority of reported decisions involve criminal prosecutions arising out of hunting accidents resulting in a death. See, Failla v. Amodeo, 225 A.D.2d 965 (Third Dept., 1996) (civil action following defendant's plea to reckless endangerment for accidently shooting fellow turkey hunter); People v. Smith, 26 Misc.3d 206 (Co. Ct., Essex Co., 2009) (Court acknowledges "[t]here is surprisingly little New York case law involving hunting accidents and prosecutions for criminally ...


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