People v. Mitchell

55 A.D.3d 1048, 865 N.Y.S.2d 396
Appellate Division of the Supreme Court of the State of New York·Decided October 23, 2008·Published·Cited by 17 cases

Opinion

Kavanagh, J.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered January 11, 2007, upon a verdict convicting defendant of the crime of burglary in the second degree.

During the early morning hours of December 15, 2005, Jenni Pomeroy and Tarence Williams were asleep in the home that they shared with their child when they were suddenly awoken by a man wielding a handgun and demanding money. Pomeroy was able, during the course of the confrontation, to leave the bedroom, close herself in a bathroom and, after hearing the intruder leave the residence, dial 911. During the call, she identified defendant as the intruder and later alleged that, during the course of the encounter, he took from the apartment a safe and two cellular phones. Pomeroy and Williams were interviewed at the police station and, after viewing a photographic array, identified defendant—an individual who each knew prior to the incident—as the intruder. About one month later, defendant was arrested after he was found hiding in the trunk of his girlfriend’s automobile.

Defendant was indicted for the crimes of burglary in the first degree (two counts), robbery in the first degree and petit larceny. When defendant moved to dismiss the indictment on the ground that it was based upon legally insufficient evidence, County Court conducted an inspection of the grand jury minutes and denied the motion. County Court also denied defendant’s motion to suppress any in court identification of him by the victims based upon defendant’s contention that the police employed suggestive tactics while showing the victims a photographic array of potential suspects, including a photograph of defendant, on the night of the incident. After trial, defendant was convicted [1050]*1050of burglary in the second degree and was sentenced to a prison term of 10 years, with five years of postrelease supervision. Defendant now appeals.

Defendant initially argues that County Court erred by denying his motion to dismiss the counts in the indictment that charged him with burglary in the first degree (see Penal Law § 140.30 [1] [deadly weapon], [3] [dangerous instrument]) and robbery in the first degree (see Penal Law § 160.15 [3]), claiming that the People failed to put forth any evidence before the grand jury that the gun that defendant allegedly brandished during the break-in was either operable or loaded with live ammunition (see People v Shaffer, 66 NY2d 663, 664 [1985]). Even if we were to conclude that County Court erred in denying this motion, defendant was not prejudiced by this ruling because the jury acquitted him of all of the charges that were the subject of this motion (see People v Brown, 83 NY2d 791, 794 [1994]; People v Thomas, 21 AD3d 643, 645 [2005], lv denied 6 NY3d 759 [2005]).

Defendant also alleges that the People committed misconduct before the grand jury by questioning him and another witness about defendant’s alleged involvement in gang activity. While the People’s cross-examination of defendant in this regard had little or no relevance to the issues raised during that presentation, it does not appear that such questioning resulted in any meaningful prejudice to defendant or impaired the integrity of the grand jury’s proceedings (see CPL 210.35 [5]; People v Rivette, 20 AD3d 598, 601 [2005], lv denied 5 NY3d 809 [2005]). Reversal of a criminal conviction obtained after trial based on conduct that is alleged to have occurred before the grand jury, “is a drastic, exceptional remedy and ‘should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” (People v Moffitt, 20 AD3d 687, 688 [2005], lv denied 5 NY3d 854 [2005], quoting People v Huston, 88 NY2d 400, 409 [1996]; see People v Tatro, 53 AD3d 781, 784 [2008]). Considering the other evidence presented to the grand jury—the testimony of the two victims and the circumstances surrounding defendant’s arrest—the isolated references to gang affiliation did not rise to that level and, as such, are not grounds for setting aside defendant’s conviction after trial.

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People v. Mitchell, 55 A.D.3d 1048, 865 N.Y.S.2d 396 (N.Y. Ct. App. 2008).

55 A.D.3d 1048 (People v. Mitchell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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