In People v. Walton (2d Dept. 2/9/2010), the Second Department unanimously held that an evidentiary defect is not fatal to an indictment where 1) the prosecutor instructs the grand jury to disregard the inadmissible evidence cured the evidentiary defect, and 2) where the remaining evidence is sufficient to sustain the indictment. Additionally, the court held that a prosecutor need not instruct a grand jury "regarding the effect of intoxication on the culpable mental state of depraved indifference" in a DWI homicide. Finally, the court held that a conflation of Vehicle and Traffic Law (VTL) and Penal Law (PL) mental state terms were "mere mistakes" not requiring dismissal of the indictment.
The case arose out of the following alleged facts. The defendant was intoxicated and racing on the Southern State Parkway at speeds up to and beyond 109 mph. At some time during the race, the defendant lost control of his car and struck the center divider. The impact caused a passenger in the defendant's car to be ejected and sustain fatal injuries.
Before the Grand Jury, a forensic toxicologist testified regarding the the effects of marijuana use on humans. However, the prosecutor later instructed the grand jury to disregard the marijuana-related evidence and redacted information relating to marijuana from documents in evidence, since the same toxicologist was unable to testify that the defendant was, in fact, under the influence of marijuana. The Grand Jury subsequently indicted the defendant for Murder 2º, Manslaughter 2º, and Reckless Driving. However, the Supreme Court, Nassau County, later dismissed the indictment, citing defects in the Grand Jury proceeding, including the introduction of the marijuana-related evidence at the grand jury, in addition to the prosecutor's "failure to instruct the grand jury regarding the effect of intoxication on the culpable mental state of depraved indifference[.]" Additionally, the trial court cited as error the prosecutor's incorrect equating of the PL term "recklessly" with the VTL term "reckless."
On the People's appeal, the Second Department first noted that the standard for dismissal of an indictment is "very precise and very high [and is] limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury." Accordingly, the court noted that "the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment." Additionally, the court noted that, once a prosecutor instructs a grand jury to disregard inadmissible evidence, "the grand jury is presumed to have followed the prosecutor's curative instructions, dispelling any prejudice to the defendant." Combining these standards, the court concluded that the indictment should not have been dismissed merely on the basis of inadmissible marijuana evidence, since the prosecutor gave curative instructions to the Grand Jury, which that body is presumed to have followed.
The court also considered the prosecutor's failure to instruct the Grand Jury regarding the effect of intoxication on the mental state of depraved indifference, noting that "a prosecutor is not required to present mitigating defenses to a grand jury." The court further reasoned that intoxication was "like a mitigating defense," as it "reduced the gravity of the offense by negativing an element." At best, a successful intoxication defense would result in a conviction for Manslaughter 2º, a crime for which the defendant was also indicted; therefore, in this context intoxication was a mere mitigation defense and the People were not required to charge the Grand Jury on it.
In regard to the prosecutor's other instructions to the grand jury, the court noted that prosecutors' instructions to the Grand Jury are sufficient if the instructions provide enough information to enable intelligent decision of (1) whether a crime has been committed, and (2) whether legally sufficient evidence exists to establish the material elements of the crime. Applying this standard, the court concluded that, since the prosecutor tracked the relevant language of the VTL, his incorrect instructions regarding the word "recklessly" were "superfluous" and "mere mistake."
Thus, the court found that the defects in the Grand Jury proceeding were not prejudicial to the "ultimate decision" of the grand jury and that, therefore, dismissal of the indictment was not warranted. Accordingly, the court reversed the order of the trial court and reinstated the indictment. (JTR/LC)