People v. Sabo

179 Misc. 2d 396, 687 N.Y.S.2d 513, 1998 N.Y. Misc. LEXIS 653
CourtNew York Supreme Court
DecidedNovember 30, 1998
StatusPublished
Cited by4 cases

This text of 179 Misc. 2d 396 (People v. Sabo) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Sabo, 179 Misc. 2d 396, 687 N.Y.S.2d 513, 1998 N.Y. Misc. LEXIS 653 (N.Y. Super. Ct. 1998).

Opinion

OPINION OF THE COURT

Budd G. Goodman, J.

The defendant is charged in the instant indictment with the crimes of attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [vi]), conspiracy in the second degree (Penal Law § 105.15) and criminal solicitation in the second degree (Penal Law § 100.10). In his pretrial omnibus motion, the defendant moves this court to (i) inspect the Grand Jury minutes (and for disclosure of such minutes to the defendant), (ii) dismiss count one of the indictment as being legally insufficient, (iii) dismiss count three of the indictment as being [398]*398defectively pleaded, and (iv) dismiss the entire indictment for lack of accomplice corroboration.

A brief review of the facts of the case is helpful to an understanding of the court’s decision contained herein.

The People contend that the defendant (on behalf of an unnamed third party) hired another person (hereinafter referred to herein as either the Informant or Doe) to procure a hit man to murder Robert Jacobs (Jacobs). In furtherance thereof, the People allege that the defendant approached Doe with a plan to murder Jacobs, provided Doe with a plan to carry out the murder, gave Doe a photograph of Jacobs, together with Jacobs’ home and business addresses and Social Security number and paid Doe the initial sum of $10,000, as a down payment towards a total agreed payment of $25,000, once Jacobs had been murdered. The People further contend that the defendant instructed Doe that the hit should be accomplished in a public manner. It is alleged that before taking any steps to effectuate the plan, the Informant told the police about the plot. Working with law enforcement personnel, Doe informed the defendant that he had procured a hit man to carry out the plan. A telephone conversation which took place on November 26, 1997 between the defendant and Doe and one personal meeting between the defendant and Doe on December 3, 1997 were recorded by the police (the Recordings). Transcripts of the Recordings (which to a large extent are in Hebrew) were introduced into evidence before the Grand Jury (the People state that copies of most of the transcripts have been previously provided to the defendant). In the November 26 telephone call, the Informant tells the defendant that the person that he had originally procured to do the hit had been arrested and is in jail and as a result that person’s brother is now going to do the job. In the same recorded conversation, the defendant is also heard expressing concern about the plan because it was taking too long to complete. In this conversation, the defendant and the Informant allegedly agreed that the murder would have to take place no later than November 28, 1997, or the defendant’s $10,000 down payment would be returned. On December 3, 1997, the Informant met with the defendant at the defendant’s office. At this meeting, the Informant brought with him Jacobs’ driver’s license and a photograph of Jacobs in which he had been made-up by a police artist to appear as though he had been killed. In the recorded conversation of that December 3 meeting, the defendant allegedly informed Doe that the photograph and identification were insufficient proof [399]*399of Jacobs’ death. He allegedly tells Doe that in order to prove Jacobs’ death, that Jacobs’ body has to be found in public, that a funeral has to be held and that Jacobs’ family has to be seen “sitting Shiva” (the seven-day period of mourning in the Jewish religion). The defendant is heard telling the Informant that the balance of the $25,000 payment will not be paid, unless Jacobs’ death is proven in this manner.

The court has reviewed the submissions of the parties, as well as the relevant statutory and case law and disposes of the defendant’s motion for multiple relief as follows:

1. Motion to Inspect the Grand Jury Minutes; Motion to Release the Grand Jury Minutes; and Dismissal of the Indictment for Legal Insufficiency and/or Defective Grand Jury Proceedings

The defendant’s motion is granted solely to the extent of the court reviewing the Grand Jury minutes, in camera. The court finds that it is able to make a determination as to legal sufficiency without having to release the minutes of the Grand Jury proceedings to the defendant. Therefore, disclosure of the minutes is not permitted. (See, People v Elmhurst Milk & Cream Co., 116 Misc 2d 140, 157; People v Dairylea Coop., 114 Misc 2d 421, 430; see also, Matter of Brown v LaTorella, 229 AD2d 391 [2d Dept 1996].) After reviewing the minutes, the court finds that legally sufficient evidence was presented by the People to the Grand Jury to sustain the indictment and that the proceedings were not otherwise impaired or defective. The court will address each of the defendant’s contentions regarding the Grand Jury presentation individually.

2. Dismissal of Count One of the Indictment (Attempted Murder in the First Degree)

It is well settled that on a motion to dismiss an indictment, “[t]he 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 (see, People v Pelchat, 62 NY2d 97)” (People v Jennings, 69 NY2d 103, 114). In this regard, a Grand Jury must have presented to it legally sufficient evidence to establish a prima facie case, including all of the elements of the crime charged and reasonable cause to believe that the accused committed the offense charged. (People v Jennings, supra; People v Galatro, 84 NY2d 160; People v Jensen, 86 NY2d 248; CPL 190.65 [1].) GPL 70.10 (1) defines [400]*400“legally sufficient” evidence as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’. (People v Jennings, supra.) Legally sufficient has been held to mean “prima facie [proof], not proof beyond a reasonable doubt.” (People v Mayo, 36 NY2d 1002, 1004.) It is irrelevant that the evidence presented to a Grand Jury is also capable of innocent interpretation, as long “as the Grand Jury could rationally have drawn the guilty inference”. (People v Deegan, 69 NY2d 976, 979; People v Jensen, supra.) A court reviewing the Grand Jury presentation must limit its inquiry to the legal sufficiency of the evidence and may not examine the adequacy of proof to establish the reasonable cause required by the Grand Jury to indict. (Supra.)

In moving to dismiss count one of the indictment, the defendant contends that the evidence of his acts presented to the Grand Jury failed to constitute an “attempt” (as defined by Penal Law § 110.00 and case law) to commit the crime of murder in the first degree under Penal Law § 125.27 (1) (a) (vi), because his acts were not dangerously close to accomplishing a criminal result. The relevant sections of the Penal Law for examination are sections 20.00, 110.00, 110.10 and 125.27 (1) (a) (vi).

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Cite This Page — Counsel Stack

Bluebook (online)
179 Misc. 2d 396, 687 N.Y.S.2d 513, 1998 N.Y. Misc. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sabo-nysupct-1998.