*1 By decision and order dated November 9, 2017, this Court dismissed the only two felony counts on the indictment — both charging the defendant with assault in the second degree (Penal Law §120.05[3]) — finding that the prosecutor’s incomplete instruction to the grand jury with respect to these counts impaired the integrity of the grand jury proceeding. By the same order, this Court granted the People leave to re-present these charges to a properly charged grand jury. Instead of re-presenting these charges, the People, by papers dated December 8, 2017,1 move to reargue this Court’s decision and order. The defendant opposes this motion, by papers dated December 12, 2017. In determining the instant motion, this Court has considered the People’s Affirmation in Support of the Motion; the Affidavit of Joseph Mure, Esq.; and the minutes of the grand jury proceeding from May 9, 2017, May 19, 2017, May 22, 2017, May 31, 2017, and June 1, 2017. Upon these papers and for the reasons set forth herein, the People’s motion for leave to reargue is granted and, upon reargument, this Court adheres to its November 9, 2017 determination.*2
In New York State, the grand jury serves a vital role, acting as “a buffer between the State and its citizens, protecting the latter from unfounded and arbitrary accusations.” People v. Calbud, Inc., 49 NY2d 389, 396 (1980). The importance of this function is enshrined in our State Constitution, which provides that “no person shall be held to answer for a capital or otherwise infamous crime…unless on indictment of a grand jury.” NY Constitution, article I, §6. In furtherance of this fundamental guarantee, the legislature has created a grand jury in each county to “hear and examine evidence concerning offenses…and to take action with respect to such evidence as provided [by law].” CPL 190.05. While the grand jury has the exclusive authority to judge the facts with respect to cases that it hears, it is required to rely solely on the court and the district attorney as its legal advisors. See CPL 190.25(5), (6).It follows that, when the District Attorney presents criminal charges for a grand jury to consider, the prosecutor is both empowered and required to instruct the jury on the law governing those charges. To be sure, as the People correctly point out, “a grand jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law.” Calbud, 49 NY2d at 394. The District Attorney must, however, “give guidance adequate for the Grand Jury to carry out its function.” People v. Valles, 62 NY2d 36, 38 (1984). An instruction that is “incomplete or misleading” to the point that it “substantially undermine[s an] essential function [of the grand jury],…may fairly be said” to impair the integrity of the grand jury proceeding. Calbud, 49 NY2d at 396. Such impairment might require dismissal. See Id; see also CPL 210.35(5).In the case at bar, the District Attorney presented evidence to the grand jury that two Garden City police officers, Officer Brian Caputo and Officer Peter Hudak, observed the defendant driving a car having two defective taillights. When the officers attempted to stop the defendant’s car, the defendant refused to comply. The officers eventually caught up with the defendant’s car when traffic built up on Nassau Boulevard, north of Jericho Turnpike. Once there, the officers opened the door to the defendant’s car and attempted, unsuccessfully, to forcibly remove the defendant from vehicle. In the course of that struggle, Officer Hudak sustained injuries. When the defendant drove away from the scene, the officers gave chase, ultimately apprehending the defendant at Atlas Court in New Hyde Park. A third officer, Officer Lawrence Petraglia, who was called to assist with the arrest, also sustained injuries when the defendant kicked him while being handcuffed.
