STATE OF NEW YORK COUNTY COURT COUNTY OF LIVINGSTON

THE PEOPLE OF THE STATE OF NEW YORK,

vs. INDICTMENT NUMBER: 2010-010

PHILIP L. STEWART (d/o/b: 5/26/50) ul = Defendant.

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Please take notice that on every charge herein: The People are ready for trial o, - er:...-.<

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.■ --I THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment accuses Lo

PHILIP L. STEWART, of the crime of CRIMINAL POSSESSION OF A WEAPON

in the SECOND DEGREE, a Class C FELONY, in violation of Section 265.03(2) of the

Penal Law of the State of New York, committed as follows:

The Defendant, in the County of Livingston, on or about the 6th day of

November, 2009, possessed a loaded firearm (to wit: a loaded .357 Magnum, Smith and

Wesson Revolver) with intent to use the same unlawfully against another, at Five Star

Bank, 3110 Main Street, in the Village of Caledonia, New York.

SECOND COUNT

THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment accuses

PHILIP L. STEWART, of the crime of CRIMINAL POSSESSION OF A WEAPON

in the THIRD DEGREE, a Class D FELONY, in violation of Section 265.01(2) of the

Penal Law of the State of New York, committed as follows:

The Defendant, in the County of Livingston, on or about the 6th day of

November, 2009, possessed a dagger, dangerous knife, dirk, razor, stiletto, imitation

Thomas E. Moran, District A orney of HI, im2ston County

12.0

pistol or any other dangerous or deadly instrument or weapon (to wit: .357 Magnum,

Smith and Wesson Revolver) with the intent to use the same unlawfully against Eric

Simms, at Five Star Bank, 3110 Main Street, in the Village of Caledonia, New York.

THIRD COUNT

THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment accuses

PHILIP L. STEWART, of the crime of MENACING, in the SECOND DEGREE, a

Class A MISDEMEANOR, in violation of Section 120.14(1) of the Penal Law of the

State of New York, committed as follows:

The Defendant, in the County of Livingston, on or about the 6th day of

November, 2009, intentionally placed or attempted to place Eric Simms in reasonable

fear of physical injury, serious physical injury, or death by displaying a deadly weapon,

dangerous instrument, or what appears to be a pistol, revolver, rifle, shotgun or other

firearm, at Five Star Bank, 3110 Main Street, in the Village of Caledonia, New York.

FOURTH COUNT

THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment accuses

PHILIP L. STEWART, of the Violation of HARASSMENT, in the SECOND

DEGREE in violation of Section 240.26(1) of the Penal Law of the State of New York,

committed as follows:

The Defendant, in the County of Livingston, on or about the 6th day of

November, 2009, at Five Star Bank, 3110 Main Street, in the Village of Caledonia, New

York, with the intent to harass, annoy or alarm Eric Simms, did strike, shove, kick or

771,047$44. 47A-te

Thomas E. Moran, District Attorney of Livingston County

12 ,

otherwise subject Eric Simms to physical contact, or attempt or threaten to do the same

to Eric Simms.

FIFTH COUNT

THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment accuses

PHILIP L. STEWART, of the Violation of DISORDERLY CONDUCT, in violation

of Section 240.20(1) of the Penal Law of the State of New York, committed as follows:

The Defendant, in the County of Livingston, on or about the 6th day of

November, 2009, at Five Star Bank, 3110 Main Street, in the Village of Caledonia, New

York, with the intent to cause public inconvenience annoyance or alarm, or recklessly

creating a risk thereof engaged in fighting, violent, tumultuous or threatening behavior.

SIXTH COUNT

THE GRAND JURY OF LIVINGSTON COUNTY, by this Indictment further

accuses PHILIP L. STEWART of the Violation of DISORDERLY CONDUCT, in

violation of Section 240.20(3) of the Penal Law of the State of New York, committed as

follows:

The Defendant, in the County of Livingston, on or about the 6 th day of November,

2009, at 3110 Main Street in the Village of Caledonia, with the intent to cause public

inconvenience annoyance or alarm, or recklessly creating a risk thereof, in a public place,

used abusive or obscene language.

774-ineth. "-C11./K_./

Thomas E. Moran, District Attorney of Livingston County

the defense in many criminal cases is the defendant himself There is no justification for a rule which denies an accused the opportunity to offer his own testimony.

Rock, 483 U.S. at 52 (citations omitted) (emphasis added). Therefore, "[the Sixth

Amendment] grants to the accused personally the right to make his defense. It is the

accused, not counsel, who must be . . . accorded compulsory process for obtaining

witnesses in his favor." Faretta v. California, 422 U.S. 806, 819 (1975).

The Fourteenth Amendment's Due Process Clause

The right to testify on one's own behalf is one of the rights that is essential to

due process in a fair adversary proceeding. See Faretta, 422 U.S. at 819 n. 15. In

interpreting the Due Process Clause, the Supreme Court has held:

[t]he necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and offer testimony.

A person's right to reasonable notice of a charge against him and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.

Rock, 483 U.S. at 51 (citations omitted) (emphasis added). Thus, "[t]his right [to offer

testimony] reaches beyond the criminal trial: the procedural due process

constitutionally required in some extrajudicial proceedings includes the right of the

affected person to testify." Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973);

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Goldgerg v. Kelly, 397 U.S. 254, 269

(1970)).

(B) Jurisprudence after Rock v. Arkansas

After Rock. the U.S. Circuit Courts have almost uniformly held a defendant's

right to testify is personal and can only be waived by the defendant and not his

12L

1994), People v. Allen, 108 A.D.2d 601(1st Dept 1985), People v. Colavito, 639

N.Y.S.2d 996; Briggs v. Halloran, 12 A.D.3d 1016.

SANDOVAL/MOLINEUXNENTIMIGLIA

D. The People oppose any limitation on the cross-examination of the defendant.

However, the People do not oppose a Sandoval hearing.

It is well settled that the similarity of a prior crime to a crime charged does not

shield a defendant from cross-examination. In addition, it is equally well settled that

temporal remoteness of a conviction, standing alone, does not preclude its use on cross-

examination to impeach the defendant's credibility. People v. Turner, 239 A.D.2d 447 (r d

Dept 1997). In fact, pursuant to Richardson's 6-410, the commission of crime or acts of

individual dishonesty or untrustworthiness will usually have a very material relevance

whenever they were committed and regardless of how long ago they were committed.

The People are unaware of any Ventimiglia/Molineux/CPL §240.43 evidence that

is required to be provided at this time. Should the People subsequently intend to use any

Ventimiglia/Molineux/CPL §240.43 material, the People will advise defense counsel and

will consent to a pre-trial hearing. Pursuant to CPL §240.43, all "notification by the

prosecutor shall be made immediately prior to the commencement of jury selection." The

People oppose earlier notification.

Office Of The DISTRICT ATTORNEY

Livingston County Geneseo, NY 14454

GRAND JURY/DISMISSAL OF INDICTMENT

E. The People submit that the Grand Jury proceedings were in no way defective and

oppose the dismissal and/or reduction of any counts contained in the indictment. The

integrity of the Grand Jury was not impaired or prejudiced by the manner of presentation.

The presentation of this matter met the highest of ethical and professional standards.

The People must oppose the defendant's request for the release of the Grand Jury

minutes to the defendant or his counsel. "Secrecy has been an integral feature of Grand

Jury proceedings since well before the founding of our Nation. The reasons for this

venerable and important policy include preserving the reputations of those being

investigated by and appearing before a Grand Jury, safeguarding the independence of the

Grand Jury, preventing the flight of the accused and encouraging free disclosure of

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charges. Conditioning this right on the relinquishment nquishment of the right to testify before the Grand Jury in an unrelated case certainly jeopardizes and even dilutes the Fifth Amendment privilege (cf., Minnesota v Murphy, 465 us 420, 435-436 [noting that it would be impermissible to require a probationer to choose between asserting his privilege not to make statements that would incriminate him in a pending or later criminal prosecution and answering questions relevant to the continuance of his probationary status]).

Likewise, requiring a prospective defendant wishing to testify to forego the Fifth Amendment protection and suffer incrimination as to unrelated pending charges would place a high constitutional price on the right to testify before the Grand Jury. This right, albeit statutory, is significant (see, People v Evans, 79 NY2d 407, 413-414). "A person's reputation can be ruined forever by the mere handing up of an indictment, even though subsequently the indictment is dismissed, or the person tried and later acquitted" (People v Lazar, 51 Misc 2d 233, 235 [citation omitted]).

......... Thus, CPL 190.50(5)(a) mandates that, where the defendant has been arraigned upon an undisposed felony complaint, the People "must" notify the defendant of the Grand Jury proceeding and accord a reasonable time to appear. This provision, adopted as

,..... part of the recodification of the Code of Criminal Procedure, expanded a defendant's rights to receive notice of pending or prospective Grand Jury proceedings (see, People v Evans, 79 NY2d at 412 -413). significantly, any indictment obtained in violation of the statutory notice and waiver provisions "is invalid" and "must be dismissed" upon timely motion (CPL 190.50[5][c]; see also, CPL 210.20, 210.35[4]).

As this Court explained in People v Evans (79 NY2d 407 at 413-414), CPL 190.50(5)

\(

., protect[s] defendants' valued statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury's consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution." To guard against abridgement of this "valued" right, we have further ordered that it "must be scrupulously protected" (People v Corrigan, 80 NY2d 326, 332; see, e.g., People v Evans, 79 NY2d at 414 [affirming dismissal of indictment, because statutory right to testify was not satisfied by opportunity to appear after Grand Jury had voted indictment]).

The stakes before the Grand Jury may be somewhat lower than at trial. However, conditioning the right to testify upon waiver of the constitutional right against self-incrimination in a pending charge--solely for the purpose of allowing the People to impeach the accused's credibility before the Grand Jury--would be incompatible with the legislative and judicial efforts to safeguard this substantial right. This is particularly so where the prosecutor's admitted intention was to acquire sworn testimony for future use in an unrelated proceeding (cf., People v Russ, 79 NY2d 173, 178 [improper use of Grand Jury testimony at trial was not made in good faith but to circumvent evidentiary rule]). such a condition would undoubtedly "exert[] an undeniable chilling effect upon a real 'choice' whether to testify in one's own behalf" (People v Betts, 70 NY2d at 292).

we therefore conclude that a prospective defendant who elects to testify before the Grand Jury does not waive the privilege against self-incrimination as to credibility questioning regarding unrelated pending charges.

Turning to the preliminary ruling by the Grand Jury judge in this case, we hold that it was error to preclude defendant from asserting his Fifth Amendment privilege as to questions concerning his 1977 robbery conviction.

The People contend that defendant's credibility could be challenged through cross-examination regarding the 1977 conviction, since such questioning concerned a completed crime rather than the pending perjury charge. while a testifying defendant may generally be cross-examined for credibility purposes regarding a prior conviction, defendant's 1977 robbery conviction (and his prior denial thereof)

Page 3

gj. happened also to be the subject of the pending perjury charge. The potentially incriminatory impact of defendant's acknowledgement of the 1977 conviction is obvious. Indeed, the trial prosecutor's concession below that he planned to use defendant's responses against him in the perjury case belies the People's present claim that the proposed credibility questioning was unrelated to the pending charge.

In this highly unusual case, where a prior conviction was also an element of a pending charge, defendant was entitled to the preliminary ruling as to whether he could invoke the privilege against self-incrimination as to questions regarding the pending perjury charge. In this regard, we note that it was the trial prosecutor who initially suggested that the parties seek the preliminary ruling. This should not, as the People suggest, lead to a flood of pre-Grand Jury hearings, for our holding today prohibits nothing more than questioning regarding pending charges solely for the purpose of impeaching the credibility of a defendant who testifies before the Grand Jury.

LI,

r- The People further urge that it was the function of the prosecutor, as legal advisor to the Grand Jury, to determine the propriety of questioning defendant regarding his prior conviction and that it was therefore improper to seek the preliminary ruling from the Grand Jury judge. Both the court and the prosecutor, however, are legal advisors to the Grand Jury (CPL 190.25[6]). Thus, determining the permissible scope of cross-examination is not the exclusive province of the prosecutor, and the Grand Jury judge was empowered to issue the preliminary ruling.

Finally, defendant was not obligated to testify and then seek post-indictment review of the Grand Jury judge's ruling. Requiring the defendant to subject himself to cross-examination regarding the 1977 robbery conviction and possibly incriminate himself as to the pending perjury charge, with the hope of prevailing in a subsequent challenge, would expose the defendant to potentially irreparable injury and prejudice, rendering his Fifth Amendment protection meaningless.

Accordingly, the order of the Appellate Division should be affirmed.

Simons, J. (dissenting): Defendant has been indicted for grand larceny. He contends the indictment must be dismissed because his right to appear and testify before the Grand Jury was abridged by a prospective court ruling permitting his cross-examination about a pending criminal charge if he testified. He bases his claim upon our decision in People v Betts (70 NY2d 289; see also, People v Bennett, 79 NY2d 464), which prohibits the People from cross- examining a defendant about pending criminal charges when he chooses to testify during trial. He contends that the Betts rule applies with equal force to Grand Jury proceedings to protect him from incriminating himself in the pending matter, and the majority agree with him. However, the purpose of a trial and the constitutional right of a defendant to testify at trial are significantly different from the purpose of Grand Jury proceedings and a defendant's limited statutory right to testify before the Grand Jury. In my view, Betts need not and should not be applied to the Grand Jury proceedings, and accordingly, I dissent.

Defendant was convicted of robbery in 1977. In 1990, while testifying before a Grand Jury investigating an unrelated charge, he denied that he had been involved in the 1977 robbery. In 1991 defendant was indicted for perjury as a result of that testimony. The larceny charges in this prosecution were subsequently presented to the Grand Jury. when defendant sought to testify the Assistant District Attorney advised him that if he did so, he would be cross-examined about the 1977 robbery and his testimony would be used against him in the pending perjury proceedings. Defendant chose not to testify. He was subsequently indicted for grand larceny and this motion to dismiss followed.

Under the general rule, a criminal defendant who testifies at trial on his own

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testify

Defendant's right to testify violated where trial court failed to establish on the record that defendant's decision not to testify was made knowingly and voluntarily. 91 H. 275, 982 P.2d 904.

The Tachibana colloquy to advise a defendant that he or she has a right not to testify is required only in cases in which the defendant does not testify; it is not required in a situation where the defendant has decided to testify. 94 H. 292, 12 P.3d 1233.

To minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right to testify, trial court must give prior-to-start-of-trial advisement informing defendant of his or her right to testify or not to testify, and that if defendant has not testified by the end of trial, the court will briefly question defendant to ensure that the decision not to testify was defendant's own decision. 94 H. 292, 12 P.3d 1233.

Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated. 100 H. 210, 58 P.3d 1257.

Not violated by trial court's refusal to allow further examination of witness. 5 H. App. 127, 681 P.2d 573.

r° Defendant's constitutional and statutory right to testify in defendant's own

defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a

Lreasonable doubt. 78 H. 115 (App.), 890 P.2d 702.

II Trial court's failure to obtain on-the-record waivers from co-defendants of their right to testify was not harmless beyond a reasonable doubt where, if co-defendants' testimony had been added to version of events, jury's decision may have been different. 92 H. 148 (App.), 988 P.2d 667.

--". where trial court violated defendant's right to testify by failing to advise defendant of that right and obtain a waiver on the record, and it could not be said beyond a reasonable doubt that if defendant's testimony had been added to the eyewitness' version of the incident, the verdict would not have been different, trial court's error not harmless beyond a reasonable doubt. 93 H. 513 (App.), 6 P.3d 385.

Ams,

As right to testify is personal to defendant, to be relinquished only by defendant, court erred in failing to obtain waiver of right directly from defendant; defense counsel's remark that "he has elected not to testify" did not constitute a voluntary and knowing waiver by defendant of that right. 94 H. 271 (App.), 12 P.3d

4-271

where decisive issue in case was credibility, and there was extensive contradiction between state's witnesses and defendant's witness, a reasonable possibility existed that violation of defendant's right to testify contributed to defendant's conviction; court's error was thus not harmless beyond a reasonable doubt and defendant's conviction and sentence had to be vacated. 94 H. 271 (App.), 12 P.3d 371.

Failure to advise defendant who testified that defendant had a right not to testify during trial was harmless error, rather than plain error. 94 H. 309 (App.), 12 P.3d 1250.

confrontation of witnesses.

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testify See also notes to U.S. Const. Amend. 6.

Compulsory process provision construed; witness violating order excluding witnesses from courtroom should still be allowed to testify to guarantee to accused his constitutional right. 51 H. 581, 465 P.2d 560.

No violation where the State made a good faith effort to locate witness. 70 H. 343, 771 P.2d 509.

No violation where witness is unavailable and former testimony is used. 71 H. 274, 789 P.2d 497.

Lower court's failure to issue bench warrant for complaining witness in family abuse case, and denial of motion for dismissal without prejudice, violated appellant's right to confrontation. 72 H. 469, 822 P.2d 519.

Criminal defendant's right to be present at all stages of trial cannot be waived by counsel. 73 H. 97, 828 P.2d 280.

Error for trial court to refuse to permit a defense witness to testify as penalty for violating witness exclusion rule. 73 H. 331, 832 P.2d 269.

Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony. 74 H. 141, 838 P.2d 1374.

Appellant's right violated; trial court improperly admitted witness' testimony under excited utterance exception to hearsay rule where prosecution failed to issue trial subpoena to declarant and failed to make showing of declarant's unavailability. 74 H. 343, 845 P.2d 547.

Admission of co-defendant's testimony concerning incriminatory out-of-court statements made against defendant did not violate defendant's rights to confront defendant's accuser under the U.S. or Hawai'i Constitutions. 76 H. 148, 871 P.2d 782

circuit court's limitation of appellant's cross-examination of witness did not violate appellant's right to confront witnesses against appellant where appellant adequately raised issue of witness' possible bias. 78 H. 383, 894 P.2d 80.

Defendant's right of confrontation under this section was violated by the admission of complainant's videotaped interview in lieu of direct examination. 79 H. 128, 900 P.2d 135.

Prior to introduction of videotaped interview, cross-examination of complainant sex assault victim regarding complainant's conversation with police officer satisfied defendant's right of confrontation. 80 H. 107, 905 P.2d 613.

Not violated by admission of declarant's former testimony under HRE rule 804(b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown. 82 H. 202, 921 P.2d 122.

Abuse of discretion where trial court excluded evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial. 83 H. 109, 924 P.2d 1215.

Right violated as prosecution witness not "unavailable" under HRE rule 804(a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability. 83 H. 267, 925 P.2d 1091.

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behalf is subject to cross- examination about any "vicious or criminal act of his life" (People v Sorge, 301 NY 198, 200). In People v Sandoval (34 NY2d 371), we recognized that such a broad rule had a chilling effect on the full development of the record because it prevented many defendants from testifying and thereby denied the jury significant evidence affecting guilt or innocence. Accordingly, we held that a defendant could obtain a prospective ruling on the permissible scope of cross-examination directed to immoral, criminal or vicious acts. We did so in an effort to encourage defendants to testify, and we explicitly admonished trial justices in exercising their discretion to bear in mind the effect their decisions might have on the fact-finding process if the defendant decided not to testify as a result of their rulings (id., at 378).

In People v Betts (70 NY2d 289, supra), defendant was on trial for rape and was also subject to a pending charge of burglary. The People sought to question him about the pending charge to impeach his credibility. Following a Sandoval hearing, the Trial Justice ruled that the People could do so. That ruling presented defendant with a Hobson's choice of constitutional magnitude; if he exercised his Sixth Amendment right to testify and defend himself in one prosecution, he waived his Fifth Amendment right against self-incrimination in the other. In short, by permitting defendant to be cross-examined about pending unrelated charges for impeachment purposes in one case, the court had impaired his ability to defend himself against two separate criminal charges. Accordingly, we held that the People could not impeach a testifying defendant by questions about unrelated pending criminal charges, noting that "'[w]hile an accused, unlike an ordinary witness, has an option whether to testify at all, exacting such a [sweeping] waiver as the price of taking the stand leaves little of the right to testify on one's own behalf''(id., quoting mccormick, Evidence § 42, at 92 [3rd ed]).

Our ruling in Betts rested on three separate concerns: defendant's constitutional right to testify at trial, his constitutional right to avoid self-incrimination on a pending charge, and, implicitly, advancing the fact-finding process of the trial. These three concerns are not seriously implicated in Grand Jury proceedings.

I Addressing first the Grand Jury's fact-finding role, a Grand Jury proceeding is something quite different from a trial; its function is limited to the discovery of reasonable cause to indict (see, CPL 190.65[1]). The Grand Jury does not determine guilt or innocence -- it determines only whether sufficient evidence exists to bring charges against the defendant (see, People v Swamp, 84 NY2d 725, 729-730; People v Jennings, 69 NY2d 103, 115; People v Calbud, Inc., 49 NY2d 389, 394). Because of this limited function and purpose, there is need to further its fact-finding process by applying the Betts rule to enable the subject to present his defense (cf., People v Valles, 62 NY2d 36 [Grand Jury need not be charged on mitigating defenses]).

L. Moreover, defendant's right to appear as a witness before the Grand Jury, in contrast to his Sixth Amendment constitutional right to submit evidence on his own behalf at trial, is derived exclusively from statute (CPL 190.50[1]). This sixth Amendment right is not diminished in any way if a defendant is foreclosed from testifying before the Grand Jury. Indeed, defendants enjoyed no legal right to appear before the Grand Jury until the Legislature authorized it in 1940 (see, Presser, Practice Commentaries, McKinney's Cons Law of NY, Book 11A, CPL 190.50, at 284; L 1940, ch 643).

In granting this right to testify before the Grand Jury, the Legislature defined and conditioned it. The statute provides that a defendant choosing to do so must waive immunity, must submit to cross-examination by the District Attorney (CPL 190.50[5][b]) and cannot limit the scope of cross-examination except upon agreement of the district attorney (CPL 190.50[5][b]; CPL 190.45[4]). These statutory provisions authorize the People to fully question a defendant choosing to testify on relevant matters, including his credibility. Neither defendant nor the majority offer any reason why the statutes should be ignored or how they can be interpreted to include the rights announced in Betts.

In sum, two of the three concerns addressed by Betts are absent when defendant

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12k 35. Legally sufficient evidence is defined as "competent evidence which, if accepted

as true, would establish every element of an offense charged and the defendant's

commission thereof..." CPL §70.10(1) (emphasis added).

36. Indictments in New York State must be supported by legally sufficient, non-

hearsay, evidence, i.e. competent evidence, which means:

Evidence not subject to an exclusionary rule, such as the prohibition against hearsay (citations omitted) People v. Swamp, supra at 730.

37. The legal standard which should guide a reviewing court in determining whether

there is legally sufficient evidence to support the offenses charged has been stated

by the Court of Appeals as:

The reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted-and deferring all questions as to the weight or quality of the evidence-would warrant conviction (citations omitted). People v. Swamp, supra at 730.

2. INSTRUCTIONS TO GRAND JURY

38. An indictment must be dismissed by a reviewing court, if the court determines

that the prosecutor's instructions to the Grand Jury were inadequate, or,

misleading, or, confusing or incomplete. (See authority infra)

39. The District Attorney, along with the Court, are the only legal advisors of the

Grand Jury and, as such, either or both must instruct the Grand Jury concerning

any legal matters before it. CPL §§190.25(6); 190.30(1) & (7).

40. For a Grand Jury to properly determine whether the evidence presented is legally

sufficient to charge a person the legal instructions given to it must be adequate.

Preiser, Practice Commentaries, McKinney's CPL §190.25, Main Volume p.217

17

12L 41. The Court of Appeals affirmed the dismissal of an indictment on the grounds that

the legal instructions given to the Grand Jury were confusing. The Court of

Appeals stated:

While instructions to the Grand Jury need not be as precise as those given to a petit jury, they may not be so misleading or incomplete as to substantially undermine the integrity of the proceedings (citations omitted). The guidance provided by the prosecutor was not sufficient for the Grand Jury to carry out its function (citation omitted). People v. Caracciola, 78 N.Y.2d 1021, 1022, 576 N.Y.S.2d 74 (1991) (emphasis added). Also see CPL §§210.20(1)(c), 210.35(5).

42. In another case decided by the Court of Appeals, the Court stated:

The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution. People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238 (1980)

43. Integral to the Grand Jury's function is the prosecutor's obligation to provide the

Grand Jury with sufficient information to carry out its function in a fully informed

manner. Id. Also see, People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 36 (1984).

44. If the defendant is to have the benefit of the effective assistance of counsel and

due process at this stage of the proceedings concerning his statutory and

constitutional right to a fair Grand Jury presentation, a transcript of the legal

instructions to the Grand Jury should be delivered to defense counsel for

examination so that more a precise argument can be made in this respect. I

reserve the right to file supplemental affirmations if and when I get said transcript.

18

12M 45. The prosecution can articulate no reason for keeping secret the instructions to the

Grand Jury except the preservation of an Indictment that was obtained from an

improperly instructed Grand Jury.

46. The burden of conducting this detailed examination of the legal instructions

should not fall entirely on the Court, which could not possibly be as familiar with

the contours of this case, at this point of the proceedings, as counsel for the

defendant.

47. At the outset I do not presume that the legal instructions dealing with all Counts

of the Indictment were adequate and request inspection and dismissal. Any

instruction short of that contained in CJI would be legally inadequate and require

dismissal. CPL§§210.20(1)(c) and 210.35(5); U.S. Const., 5th and 14th Amdts.

and N.Y.S. Const. art. 1, §6.

3. DEFECTIVE PROCEEDING

48. CPL §210.35(5) provides that a grand jury proceeding is defective when:

The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result. (emphasis added)

49. Actual prejudice is not required. People v. Huston, 88 N.Y.2d 400, 409, 646

N.Y.S.2d 69, 74 (1996)

50. Where the possibility of prejudice to the defendant exists as a result of defects in

the proceedings before the Grand Jury, including but not limited to inadequate

and/or incorrect legal instructions, an Indictment may be dismissed even though

the evidence is found to be legally sufficient. People v. Howard, 152 Misc.2d 956,

19

G. SUPPRESSION OF STATEMENTS, OBSERVATIONS, TEST RESULTS AND TANGIBLE EVIDENCE

56. The People have provided the defendant with a Notice pursuant to CPL

§710.30 describing an alleged statement by the defendant allegedly made to a public

servant. It is assumed that the Court has a copy of the 710.30 Notice.

57. Defendant moves for an order suppressing any and all (1) statements made

by the defendant to a public servant, (2) observations of the defendant; and (3) tangible

evidence obtained on November 6, 2009, as well as any and all fruits thereof based upon

unlawful police conduct, the exploitation thereof gave rise to said statements,

observations, tests and the like.

58. If this Court does not summarily grant defendant's request for suppression

of said statement(s), etc., then the defendant requests any appropriate hearing.

FACTS

59. At or about 3:20 p.m. on November 6, 2009 Police Officer Jared

Passamonte ("Officer Passamonte") received a dispatch to 3110 Main Street, Caledonia,

New York for a white male with a gun, leaving the bank and getting into his truck.

60. Officer Passamonte arrived and observed a white male exit the bank and

get into a truck.

61. Officer Passamonte exited his vehicle, pulled his service revolver and

pointed it at the defendant, ordering the defendant to exit his vehicle.

62. The defendant exited his vehicle and was immediately handcuffed and

placed in a marked patrol vehicle.

63. The defendant was placed under arrest and was transported to Caledonia

Police Department where it is alleged the defendant was read his Miranda warnings and

22

12 ¢ did waive his rights.

64. It is then alleged that the defendant gave Inv. Cane a voluntary statement

which was then signed by the defendant.

65. The alleged statements are contained in the 710.30 Notice filed by the

People at the time of defendant's arraignment.

CONCLUSION

66. The foregoing warrantless stop, search and seizure demonstrates that any

and all statements, observations, test results and tangible evidence obtained on November

6, 2009 resulted from illegal police conduct thereby entitling defendant to an order

suppressing the statements, observations, test results, tangible evidence and all the fruits

thereof. Wong Sun v. United States, 371 U.S. 471.

67. If this Court does not summarily grant the defendant's motion to suppress

any and all of said statements and all the fruits thereof, defendant requests the appropriate

hearings. (Huntley and Probable Cause Hearings.)

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Muldoon & Getz

12 P Attorneys at Law

144 Exchange Boulevard, Suite 402 Rochester, New York 14614-2108

585 • 262-5130

Gary Muldoon Fax 585 • 262-3474

Jon P. Getz Not for service of legal process

Martin P. McCarthy II

James L. Riotto, II

Margaret McMullen Reston, of counsel Lisa Prestianni, Paralegal

May 5, 2011

Philip Stewart 639 McIntyre Road Caledonia, NY 14423

Re: Retainer agreement Retrial of Livingston County charges

Dear Mr. Stewart:

As you know, at this point the District Attorney's Office is agreeing to a reversal of your conviction after trial. With the conviction being reversed, the case will be returned to Caledonia Village Court and may be retried. For a new trial you will need to be represented by an attorney.

This agreement will encompass legal representation on the retrial of charges of Menacing 2nd degree, Harassment 2nd degree and Disorderly Conduct in Livingston County.

Amount of retainer A retainer is to be paid in the amount of $8,000. Representation will commence upon receipt of that retainer. This amount will be charged whether the case goes to trial or results in a plea or some other resolution other than trial. This is the minimum fee for this office to represent you on this matter to conclusion.

Conclusion of case For purposes of this agreement, the case will be considered concluded upon the happening of either imposition of a