the People: CHRISTINE CALLANAN, ESQ. Assistant District
Defendant R.P.: PAUL GUERRERI, ESQ
Defendant M.R.: MARK CIANCA, ESQ.
R. Renzi, Justice of the Supreme Court.
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.
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.
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.
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.
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).
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 ; 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).
court has examined the Grand Jury minutes using the standards
as set forth above.
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.
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.
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