People v. Salisbury

Appellate Division of the Supreme Court of New York

People v. Salisbury

182 A.D.2d 1105, 582 N.Y.S.2d 887, 1992 N.Y. App. Div. LEXIS 6981

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 1992

StatusPublished

Cited by1 cases

This text of 182 A.D.2d 1105 (People v. Salisbury) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Salisbury, 182 A.D.2d 1105, 582 N.Y.S.2d 887, 1992 N.Y. App. Div. LEXIS 6981 (N.Y. Ct. App. 1992).

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Opinion

Order unanimously affirmed. Memorandum: County Court properly dismissed the indictment charging defendant with assault in the second degree. The prosecutor’s examination of defendant before the Grand Jury regarding prior assaults and his gratuitous comment that his father had prosecuted defendant for one of them had no probative value and "only served impermissibly to foster speculation that defendant, as a person with a violent disposition, was likely to have provoked the assault” (People v Mena, 70 AD2d 550; see also, People v Grafton, 115 AD2d 952; cf., People v Peek, 40 NY2d 920). The prosecutor’s failure to give an appropriate limiting instruction that defendant’s prior behavior was to be considered only on credibility compounded the prejudice (see, People v Adams, 81 Misc 2d 528; cf., People v Thompson, 116 AD2d 377). The court acted within its discretion in permitting the People to submit to another Grand Jury (CPL 210.20 [4]).

We disagree, however, with County Court’s determination that the evidence before the Grand Jury was insufficient to sustain the indictment. The alleged victim’s testimony regarding the incident, albeit disputed, was sufficient. (Appeal from Order of Cattaraugus County Court, Kelly, J. — Dismiss Indictment.) Present — Callahan, J. P., Boomer, Lawton, Boehm and Davis, JJ.

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Order unanimously affirmed. Memorandum: County Court properly dismissed the indictment charging defendant with assault in the second degree. The prosecutor’s examination of defendant before the Grand Jury regarding prior assaults and his gratuitous comment that his father had prosecuted defendant for one of them had no probative value and "only served impermissibly to foster speculation that defendant, as a person with a violent disposition, was likely to have provoked the assault” (People v Mena, 70 AD2d 550; see also, People v Grafton, 115 AD2d 952; cf., People v Peek, 40 NY2d 920). The prosecutor’s failure to give an appropriate limiting instruction that defendant’s prior behavior was to be considered only on credibility compounded the prejudice (see, People v Adams, 81 Misc 2d 528; cf., People v Thompson, 116 AD2d 377). The court acted within its discretion in permitting the People to submit to another Grand Jury (CPL 210.20 [4]).

We disagree, however, with County Court’s determination that the evidence before the Grand Jury was insufficient to sustain the indictment. The alleged victim’s testimony regarding the incident, albeit disputed, was sufficient. (Appeal from Order of Cattaraugus County Court, Kelly, J. — Dismiss Indictment.) Present — Callahan, J. P., Boomer, Lawton, Boehm and Davis, JJ.

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Bluebook (online)

182 A.D.2d 1105, 582 N.Y.S.2d 887, 1992 N.Y. App. Div. LEXIS 6981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-salisbury-nyappdiv-1992.

Opinion

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