[696] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered June 25, 2002, convicting her of assault in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the sentence is vacated, the defendant’s motion to dismiss the indictment is granted, and the indictment is dismissed, with leave to resubmit the charges to another grand jury; and it is further,
Ordered that upon service of a copy of this decision and order upon him or her, the official having custody of the defendant’s person is directed to produce the defendant, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on her own recognizance or fixing bail or committing her to the custody of the New York City Department of Correctional Services pending resubmission of the case to the grand jury and the grand jury’s disposition thereof (cf. CPL 210.45 [9]). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a grand jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a grand jury, (c) the filing with the court of a grand jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People a reasonable opportunity to resubmit the case to a grand jury.
On November 28, 1999, the defendant, Yvonne Samuels, went to the apartment of her former husband, Orville Samuels (hereinafter the complainant), to borrow $20. He opened the door and told the defendant that he had no money. The two exchanged words, and, according to the defendant’s testimony before the grand jury, the complainant pushed her and grabbed her by the throat, causing her to fall to the ground at the bottom of the steps leading to the apartment. The complainant took a cup of acid from a shelf by the door where he was standing. The two then struggled over the cup until its contents spilled on both of [697] them, causing burns over 25% of the complainant’s body and leaving him blind in one eye.
The defendant moved before trial to dismiss the indictment, inter aha, because the District Attorney failed to include in the charge to the grand jury instructions on the defense of justification. The People opposed the motion on the ground that the evidence did not support such a charge. The Supreme Court denied the motion without explanation. The defendant was subsequently convicted after a trial in which the Supreme Court provided instructions to the jury on the defense of justification.
The defendant asserts, inter aha, that the denial of her motion was error. It is worthwhile to note that her conviction does not deprive this Court of the right to review this issue (see People v Huston, 88 NY2d 400, 411 [1996]; People v Wilkins, 68 NY2d 269, 277 n 7 [1986]). The People do not argue otherwise. We agree with the defendant that her motion to dismiss the indictment should have been granted and, accordingly, reverse her conviction and dismiss the indictment with leave to resubmit the charges to another grand jury (see CPL 210.20 [4]; People v Huston, supra at 411-412; People v Sayavong, 83 NY2d 702, 712 [1994]; People v Wilkins, supra at 277).
We agree with the dissent that this case highlights an anomaly in statutory law. In fact, we agree that it is absurd to be constrained, as we are, to reverse a judgment of conviction after trial supported by legally sufficient evidence, where the petit jury rejected the justification defense, merely because the prosecutor failed to furnish the grand jury with instructions on this defense. Yet, this is the same result that the Court of Appeals reached in People v Huston (supra). There, the defendant was convicted of two counts of murder in the second degree after a jury trial. Because the prosecutor engaged in misconduct in presenting the case to the grand jury that indicted the defendant for these crimes, however, the court reversed the conviction upon a finding that the integrity of the grand jury had been impaired creating a risk of prejudice to the defendant (see CPL 210.35 [5]; People v Huston, supra at 411-412; People v Sayavong, supra at 711).
The dissent recognizes in the case at bar that, while the Legislature amended the Criminal Procedure Law to eliminate a similar anomaly of dismissals after trial where the evidence before the grand jury had been legally insufficient (see CPL 210.30 [6]), it failed to take action where the error was a failure to instruct the grand jury on a complete defense later rejected by the trial jury. This very observation was also made by Chief Judge Kaye writing the opinion in People v Huston (supra at 411). We are not legislators, and we leave to that branch of [698] government and to the Governor the prerogative of amending the Criminal Procedure Law to eliminate the anomaly or absurdity of the result here and in People v Huston (supra). We cannot do it.
The District Attorney is required to instruct the grand jury on the law with respect to matters before it (see CPL 190.25 [6]). If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL 210.35 [5]; People v Valles, 62 NY2d 36, 38 [1984]; People v Calbud, Inc., 49 NY2d 389, 395-396 [1980]). Where the evidence before the grand jury supports it, the charge on justification must be given (cf. People v Mitchell, 82 NY2d 509, 514-515 [1993]; People v Lancaster, 69 NY2d 20, 27-28 [1986], cert denied 480 US 922 [1987]; People v Torres, 252 AD2d 60, 65 [1999]).
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[696] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered June 25, 2002, convicting her of assault in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the sentence is vacated, the defendant’s motion to dismiss the indictment is granted, and the indictment is dismissed, with leave to resubmit the charges to another grand jury; and it is further,
Ordered that upon service of a copy of this decision and order upon him or her, the official having custody of the defendant’s person is directed to produce the defendant, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on her own recognizance or fixing bail or committing her to the custody of the New York City Department of Correctional Services pending resubmission of the case to the grand jury and the grand jury’s disposition thereof (cf. CPL 210.45 [9]). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a grand jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a grand jury, (c) the filing with the court of a grand jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People a reasonable opportunity to resubmit the case to a grand jury.
On November 28, 1999, the defendant, Yvonne Samuels, went to the apartment of her former husband, Orville Samuels (hereinafter the complainant), to borrow $20. He opened the door and told the defendant that he had no money. The two exchanged words, and, according to the defendant’s testimony before the grand jury, the complainant pushed her and grabbed her by the throat, causing her to fall to the ground at the bottom of the steps leading to the apartment. The complainant took a cup of acid from a shelf by the door where he was standing. The two then struggled over the cup until its contents spilled on both of [697] them, causing burns over 25% of the complainant’s body and leaving him blind in one eye.
The defendant moved before trial to dismiss the indictment, inter aha, because the District Attorney failed to include in the charge to the grand jury instructions on the defense of justification. The People opposed the motion on the ground that the evidence did not support such a charge. The Supreme Court denied the motion without explanation. The defendant was subsequently convicted after a trial in which the Supreme Court provided instructions to the jury on the defense of justification.
The defendant asserts, inter aha, that the denial of her motion was error. It is worthwhile to note that her conviction does not deprive this Court of the right to review this issue (see People v Huston, 88 NY2d 400, 411 [1996]; People v Wilkins, 68 NY2d 269, 277 n 7 [1986]). The People do not argue otherwise. We agree with the defendant that her motion to dismiss the indictment should have been granted and, accordingly, reverse her conviction and dismiss the indictment with leave to resubmit the charges to another grand jury (see CPL 210.20 [4]; People v Huston, supra at 411-412; People v Sayavong, 83 NY2d 702, 712 [1994]; People v Wilkins, supra at 277).
We agree with the dissent that this case highlights an anomaly in statutory law. In fact, we agree that it is absurd to be constrained, as we are, to reverse a judgment of conviction after trial supported by legally sufficient evidence, where the petit jury rejected the justification defense, merely because the prosecutor failed to furnish the grand jury with instructions on this defense. Yet, this is the same result that the Court of Appeals reached in People v Huston (supra). There, the defendant was convicted of two counts of murder in the second degree after a jury trial. Because the prosecutor engaged in misconduct in presenting the case to the grand jury that indicted the defendant for these crimes, however, the court reversed the conviction upon a finding that the integrity of the grand jury had been impaired creating a risk of prejudice to the defendant (see CPL 210.35 [5]; People v Huston, supra at 411-412; People v Sayavong, supra at 711).
The dissent recognizes in the case at bar that, while the Legislature amended the Criminal Procedure Law to eliminate a similar anomaly of dismissals after trial where the evidence before the grand jury had been legally insufficient (see CPL 210.30 [6]), it failed to take action where the error was a failure to instruct the grand jury on a complete defense later rejected by the trial jury. This very observation was also made by Chief Judge Kaye writing the opinion in People v Huston (supra at 411). We are not legislators, and we leave to that branch of [698] government and to the Governor the prerogative of amending the Criminal Procedure Law to eliminate the anomaly or absurdity of the result here and in People v Huston (supra). We cannot do it.
The District Attorney is required to instruct the grand jury on the law with respect to matters before it (see CPL 190.25 [6]). If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL 210.35 [5]; People v Valles, 62 NY2d 36, 38 [1984]; People v Calbud, Inc., 49 NY2d 389, 395-396 [1980]). Where the evidence before the grand jury supports it, the charge on justification must be given (cf. People v Mitchell, 82 NY2d 509, 514-515 [1993]; People v Lancaster, 69 NY2d 20, 27-28 [1986], cert denied 480 US 922 [1987]; People v Torres, 252 AD2d 60, 65 [1999]).
In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant (cf. People v Padgett, 60 NY2d 142, 144-145 [1983]). Here, the People argue that no reasonable view of the evidence before the grand jury supported such a defense. They suggest that the defendant had no reasonable belief that she faced the imminent use of deadly physical force and that she could have retreated in complete safety. This argument fails to interpret the grand jury testimony in a light most favorable to the defendant. The dissent, in arguing that the defendant’s grand jury testimony would not support a finding that she reasonably believed the complainant was threatening her with deadly physical force but only established that “the spilling of the acid was an accidental byproduct of an argument that became mutually physical,” likewise fails to interpret this testimony in a light most favorable to the defendant. So viewed, the defendant’s testimony established that she knew that the complainant kept cleaning supplies on the shelf by the door, that he took the cup of acid from the shelf while she was on the ground after he pushed her and grabbed her throat, that she was afraid of the complainant because he was always abusing her, and that they struggled for the cup which spilled and burned both of them. Furthermore, the evidence did not establish that the defendant knew that she could in complete safety retreat back up the stairs from the complainant’s front door (see Penal Law § 35.15 [2] [a]; People v Light, 170 AD2d 461, 462-463 [1991]; People v Rodriguez, 111 AD2d 879, 881 [1985]). Paradoxically, the Supreme Court denied the defendant’s motion to dismiss the indictment for failure to give a justification charge, yet, it charged the trial jury on the justification defense.
Accordingly, the evidence before the grand jury required the District Attorney to give a charge on justification, and the fail[699] ure to do so impaired the integrity of that body to such a degree that the defendant may have been prejudiced by an unwarranted prosecution (see CPL 210.35 [5]; People v Caracciola, 78 NY2d 1021, 1022 [1991]; People v Batashure, 75 NY2d 306, 311-312 [1990]; People v Valles, supra; People v Calbud, Inc., supra). Therefore, the Supreme Court erred in denying the defendant’s motion to dismiss the indictment on this ground.
The dissent would forgive this error because the defense counsel, who actively represented the defendant when she appeared in the grand jury, made no request that the grand jury be instructed on justification. The dissent quotes the concurring opinion of Chief Judge Kaye (then Judge Kaye), in People v Valles (supra at 41), to the effect that the absence of a request to instruct the grand jury on the affirmative defense of extreme emotional disturbance from an actively-involved defense -attorney should not be ignored. First, the context of this quote, a makeweight observation because the evidence did not support the defense, suggests that counsel made a strategic choice to avoid blunting the justification charge which was given in Valles. Second, the dissent has no assurance that the defense counsel at bar did not request that the grand jury be instructed on justification. All we can know is what happened on the record before the grand jury. If defense counsel made this request outside the presence of the grand jury—as should have been the case (see CPL 190.52 [2]), orally or in writing, it would not be reflected in the grand jury minutes. And, it is no wonder that the record is undeveloped on this point because the prosecutor never raised this argument now being constructed for the first time on appeal by the dissent. Third, while the defense attorney may be present with the defendant-witness in the grand jury room and may advise his or her client, the lawyer “may not otherwise take any part in the proceeding” (CPL 190.52 [2] [emphasis added]). Certainly, Judge Kaye was aware of this tight restriction when she concurred in People v Valles and observed that “defense counsel in this situation cannot be held to the same requirement of precision in making requests as exists in the trial context.” (People v Valles, 62 NY2d at 41.)
The defendant’s remaining contentions are without merit. Goldstein, Crane and Cozier, JJ., concur.