Judge David Zuckerman1DECISION & ORDERI. BACKGROUNDDefendants Gladimir Borsiquot, Stanley Juin, Jenna Cippoletti, Paige Willock, Ronald Babcock, Matthew Sobieraj, Joseph Sweeney, Jenna Pippolo, and Kevin Michel (hereinafter, individually, “Borsiquot”, “Juin,” “Cippoletti”, “Willock”, “Babcock”, “Sobieraj”, “Sweeney,” “Pippolo”, and “Michel”, and collectively “Defendants”) stand accused under Indictment No. 2018-100 of two counts of Conspiracy in the Fourth Degree (Penal Law 105.10[1]). As set forth in the indictment, it is alleged that, on or about and between July 31, 2017 and November 20, 2017, Defendants, in Rockland County, with intent that conduct constituting two Class B Felonies, to wit, Criminal Sale of a Controlled Substance in the Third Degree (Penal Law 220.39[1]) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law 220.16[1]) be performed, agreed with each other and with others to sell and possess cocaine with the intent to sell it and thereafter one of the co-conspirators committed an overt act in furtherance of the agreement. By Notices of Motion, with accompanying Affirmations, Defendants have moved for omnibus relief2. In response, the People have submitted Affirmations in Opposition. Thereafter, the court forwarded “Coleman letters” (see People v. Coleman, 131 AD3d 705 (2nd Dept 2015) to the parties expressing concern regarding the People’s failure to charge the Grand Jury regarding any overt acts (the Indictment sets forth 83 such acts) as well as Whether the evidence presented to the Grand Jury established, prima facie, proof that each Defendant conspired with each and every other Defendant as charged in the Indictment. The People and Defendants responded to both correspondence. On June 21, 2018, the court heard oral argument on the issues. At the close of oral argument, the People requested additional time to submit legal precedent on the issue of whether a dismissal of the conspiracy counts as to any single defendant mandated dismissal as to all. They did so by letter dated June 25, 2018. Defendants subsequently responded to this correspondence as well.The motions are disposed of as follows:II. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS AND/OR REDUCE THE INDICTMENTDefendants move pursuant to CPL 210.20(1) (b) and (c) to dismiss the indictment, or counts thereof, on the grounds that the evidence before the Grand Jury was legally insufficient and that the Grand Jury proceeding was defective within the meaning of CPL 210.35. On consent of the People, the Court has reviewed the minutes of the proceedings before the Grand Jury.Pursuant to CPL 190.65(1), an indictment must be supported by legally sufficient evidence which establishes that the defendant committed the offenses charged. Legally sufficient evidence is competent evidence which, if accepted as true, would establish each and every element of the offense charged and the defendant’s commission thereof (CPL 70.10[1]); People v. Jennings, 69 NY2d 103 [1986]). “In the context of a grand jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt.” People v. Bello, 92 NY2d 523 (1998); People v. Ackies, 79 AD3d 1050 (2nd Dept 2010). In rendering a determination, “[t]he reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilt.” Bello, supra, quoting People v. Boampong, 57 AD3d 794 (2nd Dept 2008-internal quotations omitted); People v. Batashure, 75 NY2d. 306, 311-12 (1990) (“the question whether there is sufficient evidence of each element of a crime lies at the very heart of the decision to vote an indictment”).A. LEGAL SUFFICIENCY OF THE EVIDENCE AS TO CONSPIRACYCPL 210.20 provides that1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that:(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense;A review of the minutes of the Grand Jury proceedings reveals that the evidence presented, if accepted as true, is not legally sufficient to establish every element of the offenses charged against each of the defendants. Therefore, the indictment must be dismissed.PL 105.10 provides thatA. person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting1. a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct.PL 105.20 addsA person shall not be convicted of conspiracy unless an overt is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.While the core of a conspiracy is an illicit agreement, People v. Berkowitz, 50 NY2d 333 (1980). the full definition of the crime includes “an agreement to commit an underlying substantive crimecoupled with an overt act committed by one of the conspirators in furtherance of the conspiracy.” People v. Caban, 5 NY3d 143, 149 (2005) quoting People v. Schwimmer, 66 AD2d 91, 95-96 (2d Dept 1978), aff’d for reasons stated below 47 NY2d 1004 (1979).The instant indictment charges that Defendants agreed with each other and with others to engage in acts constituting two counts of Conspiracy in the Fourth Degree. In order to review the legal sufficiency of the evidence in that context, the court must examine not only the evidence as to an overall conspiracy, but also as it applies to each and every defendant.The evidence before the Grand Jury describes a “multiple conspiracy,” where a number of agreements, possibly related to each other, are combined into a single conspiracy count. See 6 NY Prac., Criminal Law 4:7 (4th ed. – Marcus, Hon. Martin)(hereinafter “Marcus., Criminal Practice”). Courts have analyzed this type of conspiracy by reference to a bicycle wheel with a central “hub” and “spokes” emanating therefrom. See e.g., Kotteakos v. United States, 328 US 750 (1946). The central parties here, Borsiquot and Juin, conform to the “hub” in the conspiracy. In this scenario, Sobieraj, Sweeney, Pipolo, Michel, and Babcock deal directly with Borsiquot as “spokes,” while Willock and Cippoletti deal directly with, and are “spokes” to, Juin. See Marcus, Criminal Practice, supra. To be legally sufficient, “hub and spoke” conspiracies must be joined by a “rim,” a single controlling agreement among the co-conspirators. In other words, there is no single conspiracy unless “there is sufficient evidence to establish that the smaller conspiracies are unified by a single, overarching agreement.” Id.In People v. Leisner, 73 NY2d 140 (1989), the Court recognized the general danger of “guilt by association” in cases with conspiracy charges and warned of jury confusion where proof establishes “several discrete conspiracies but not the single integrated conspiracy charged in the indictment.” Id., at 149. In the absence of state precedent, the Court adopted federal jurisprudence (e.g. Berger v. United States, 295 US 78 [1935]; Kotteakos, supra; United States v. Alessi, 638 F2d 466 [2nd Cir 1980]) and held that there is insufficient proof if “something other than a single integrated conspiracy [as charged in the indictment] was proved.” Thus, where a reasonable view of the evidence supports the possibility of more than one conspiracy, the trial court must not only charge the jury regarding the possibility of multiple conspiracies, but also direct the jury to acquit if it should find evidence thereof. Id., at 150.Similarly, in People v. Giordano, 211 AD2d 814 (2nd Dept 1995), aff’d on other grounds 87 NY2d 441 (1995), the court reversed a gambling conspiracy conviction on the ground that the evidence at trial was not sufficient to demonstrate the existence of the single conspiracy alleged in the indictment. The indictment had alleged a conspiracy involving a Manhattan gambling operation which regularly “laid off” (hedged) bets with another operation in Nassau County. The People alleged that the Manhattan and Nassau operations had conspired to promote gambling. The Second Department held that there was sufficient evidence of a smaller conspiracy to promote gambling among the members of the Manhattan operation but nonetheless reversed the conviction because the evidence did not establish the larger conspiracy charged in the indictment. Thus, following the reasoning in United States v. Townsend, 924 F2d 1385 (7th Cir. 1991), the court held that the evidence was insufficient even as to the boss of the Manhattan operation, who personally laid off his operation’s bets with the Nassau operation. While the two operations undoubtedly benefitted from their mutual interactions, there was no proof of an agreement between them. Of course, without an agreement there was inadequate proof of a conspiracy. People v. Caban, supra.In explaining its decision, the Giordano court specifically noted that “‘the gist of the offense [of conspiracy] remains [an] agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.’” Id., at 816, citing Leisner, supra, at 151, quoting United States v. Borelli, 336 F2d 376, 384 (2nd Cir 1964), cert den sub nom Cinquegrano v. United States, 379 US 960 (1965). The court further instructed that “[a] conspirator must know the agreement and intend to join the conspiracy.” People v. Giordano, supra, at 816, citing United States v. Townsend, supra, at 1390(“to join a conspiracy, then, is to join an agreement, rather than a group”). Finally, “[t]he scope of the agreement must be determined individually from what was proved as to [each defendant].” People v. Giordano, supra, at 816, quoting United States v. Borelli, supra, at 385.Similar in analysis is People v. Luciano, 35 Misc3d 1217(A) (Supreme Court, NY County, 2012) a recent trial-level case involving a review of the sufficiency of Grand Jury evidence in a case alleging a single conspiracy involving multiple defendants. As described in the insightful decision by Justice Daniel P. Conviser, the Luciano conspiracy essentially involved 94 individual bank account holders who allegedly conspired to “kite” checks for several principals in the operation. The court, noting that the definition of legal sufficiency at the indictment and trial stage was the same, found that the analysis of multiple conspiracies in trial cases should apply at the Grand Jury stage as well. Upon such review, the court found that the People had failed to present legally sufficient evidence that the 94 individual defendants were part of a single conspiracy. While there was a small amount of evidence that some of the individuals had connections to some other individuals, the evidence primarily consisted of a showing that the individual defendants were connected to principals in the operation, and “no prima facie proof of a rim which connected the spokes of the alleged conspiracy together.” Id., quoting United States v. Sureff, 15 F3d 225, 229 (2nd Cir 1994).Following Kotteakos, supra, the Luciano court found a lack of evidence that each individual account holder “agreed to participate in what he knew to be a collective venture directed toward a common goal” nor that they had “reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture.” US v. Sureff, supra, at 230. While the court found adequate proof of a conspiracy between the principals and accomplices, it recognized that, where the indictment charges one single overarching conspiracy, leisner requires more than mere proof of multiple conspiracies. See also Giordano, supra. Consistent with Giordano (where the court found adequate proof of a conspiracy to promote gambling among the Manhattan operators but lack of proof of the larger conspiracy alleged in the indictment), the Luciano court found that lack of proof of a connecting “rim” was fatal to the conspiracy charge.Applying Giordano to the instant Grand Jury presentation reveals that the evidence presented, if accepted as true, when scrutinized for “evidence of an agreement”, “what kind of agreement or understanding existed as to each defendant”, and “the scope of the agreementdetermined individually from what was proved as to” each defendant would be legally insufficient to establish every element of the offenses charged. As to Borsiquot, the evidence is legally sufficient to establish that he conspired with Juin to sell and possess cocaine. It is also legally sufficient to establish that Borsiquot conspired to sell and possess cocaine with Babcock, Sobieraj, Pippolo, Michel, and Sweeney (hereinafter “the Borsiquot sellers”), and that each in turn conspired individually to sell and possess cocaine with Borsiquot. There is no evidence, however, that any individual Borsiquot seller conspired with any other individual Borsiquot seller to sell cocaine or possess it for sale. Indeed, except for Pipolo’s acknowledgment regarding knowing Sweeney, there was no evidence presented that any Borsiquot seller even knew that any other Borsiquot seller existed.Similarly, as to Juin, the evidence is legally sufficient to establish that he conspired with Borsiquot to sell and possess cocaine and that he likewise conspired to sell and possess cocaine with Cippoletti and Willock (hereinafter “the Juin sellers”). Again, however, there was no evidence presented that Cippoletti conspired with Willock to sell and possess cocaine nor evidence that Cippoletti and Willock even knew that the other existed. Finally, there was no evidence presented that any Borsiquot seller knew Cippoletti and/or Willock, nor that Cippoletti and/or Willock knew any Borsiquot seller. Having only presented sufficient evidence concerning the smaller conspiracies (Borsiquot and Juin,Borsiquot and the Borsiquot sellers, and Juin, Cippoletti and Willock), and in the absence proof of any agreement by and among all of those individuals with each other, namely the all-inclusive conspiracy charged in the indictment (i.e., “the rim”), there is a lack of legally sufficient evidence of the larger conspiracy and those counts must be dismissed. People v. Giordano, supra. Accordingly, Defendants’ motions to dismiss for lack of sufficient evidence is granted as to the two counts of Conspiracy in the Fourth Degree in Indictment 2018-100. In making this determination, the court does not find that release of the Grand Jury minutes or certain portions thereof to the parties is necessary to assist the Court.B. MOTION TO INSPECT THE GRAND JURY MINUTES AND TO DISMISS BASED ON A DEFECT IN THE PRESENTATIONEven if the court were not compelled to dismiss the indictment due to insufficient evidence in support of the two conspiracy counts, dismissal would nonetheless be required due to the prosecutor’s failure to specifically instruct the Grand Jury regarding the 83 specific overt acts (in support of the conspiracy counts) set forth in the indictment. In fact, the prosecutor did not detail any of the overt acts in the final instructions to the Grand Jury. Thus, the Grand Jury did not vote upon any particular overt act. This omission is fatal to the indictment.The court is not aware of, nor has it been provided with, any precedent, from any state or federal court, specifically addressing this issue. Thus, the court acknowledges that this appears to be an issue of first impression.Preliminarily, with respect to Defendants’ claim that the Grand Jury proceeding was defective within the meaning of CPL 210.35, a review of the minutes supports a finding that a quorum of the grand jurors was present during the presentation of evidence and at the time the district attorney instructed the Grand Jury on the law. The minutes further reflect that the grand jurors who voted to indict heard all the “essential and critical evidence” (see People v. Collier, 72 NY2d 298 [1988]; People v. Julius, 300 AD2d 167 [1st Dept 2002], lv den 99 NY2d 655 [2003]), and that the Grand Jury was properly instructed (see People v. Calbud, 49 NY2d 389 [1980] and People v. Valles, 62 NY2d 36 [1984]) except as noted below.Succinctly, the question presented is whether the Grand Jury must be instructed upon and vote upon the specific overt act(s) that the prosecutor sets forth in the indictment. The People answer in the negative. They assert that the court’s examination of the Grand Jury proceedings is limited to whether a prima facie case of conspiracy was presented and whether the instruction thereon conformed with the statutory definition of the crime. If so, they posit, the prosecution is free to set forth in the indictment any overt acts supported by the Grand Jury evidence. The People cite no cases in support of this position. Defendants generally argue that, since commission of at least one overt act in support of the conspiracy is an element of the crime, the prosecutor must identify to the Grand Jury, and the Grand Jury must affirmatively vote on, the overt act(s) set forth in the Indictment. Defendants, too, cite no cases in support of their position.The court holds that a prosecutor must instruct the Grand Jury regarding the overt acts which will be set forth in the indictment so that the Grand Jurors can vote on the sufficiency of the evidence submitted in support thereof. The court further holds that failure to do so is fatal to the conspiracy count(s). The holding has three bases: the prosecutor’s statutory role as legal advisor to the Grand Jury, preventing prejudice to a defendant regarding uncharged crimes evidence and usurpation of the Grand Jury’s inherent function to determine whether sufficient evidence was presented to it.1. The Prosecutor’s Role as Grand Jury Advisor.The statutory role of the Grand Jury is, inter alia, to determine whether the District Attorney has presented legally sufficient evidence that a crime has been committed and that the defendant committed that crime. CPL 190.65; People v. Calbud, supra. The District Attorney not only acts as an advocate in these proceedings, but also serves as the legal advisor to the Grand Jury. CPL 190.25(6). The District Attorney’s role as legal advisor carries with it a duty to insure “fair dealing with the accused,” People v. Pelchat, 62 NY2d 97, 105 (1984), which extends “not only to submission of evidence, but also to instructions on the law.” People v. Lancaster, 69 NY2d 20, 26 (1986).Nonetheless, the prosecutor is not required to give such thorough instructions as would be given to a petit jury. Rather, the prosecutor need only provide sufficient instructions so that the Grand Jury has enough information about the law “to intelligently decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.” People v. Valles, 62 NY2d 36, 38 (1984), citing People v. Calbud, supra. As the Court stated in CalbudWhen the District Attorney’s instructions to the Grand Jury are so incomplete or misleading as to substantially undermine this essential function, it may fairly be said that the integrity of that body has been impaired. Under such circumstances, CPL 210.35 (subd. 5) as well as our State constitutional guarantees might well require dismissal of the Grand Jury’s indictments.People v. Calbud, supra, at 396.In reviewing the prosecutor’s instructions to the Grand Jury, the court must determine whether the proceeding “fails to conform to the requirements of [CPL] article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.” CPL 210.35(5). Pursuant to CPL 190.25(6), the district attorney “must instruct the grand jury concerning the law with respect toany matter before it.” Failure to do so mandates dismissal of the indictment. People v. Darby, 75 NY2d 449 (1990).Failure to adequately instruct as to any material element of a crime undermines the essential function of a Grand Jury because it bears directly upon that body’s ability to properly assess the legal sufficiency of the evidence. See Calbud, supra, at 395 (District Attorney’s failure to render legal instructions on any element could be fatal to an indictment); People v. Williams, 136 AD2d 132 (2nd Dept. 1988) (reversed for prosecutor’s failure to instruct that the presumption of possession of a weapon in an automobile was permissive). The test to determine whether “prejudice” exists within the meaning of CPL 210.35 is whether the District Attorney’s action (or lack thereof) sufficiently creates the “possibility of prejudice” to warrant dismissal. People v. DiFalco, 44 NY2d 482, 486 (1978). As the Court of Appeals has held, since the essential function of the Grand Jury is to determine the sufficiency of the evidence, its role is undermined by failure of the prosecutor to provide adequate instruction as to the applicable law, including as to each element of the crime or crimes charged. This failure creates prejudice against the defendant warranting dismissal. Calbud, supra, 394-395.With respect to a charge of conspiracy, the People must establish, prima facie, that a conspirator committed at least one overt act in furtherance of the conspiracy. PL 105.20. Failure to specify a single overt act in a conspiracy charge is fatal to a Grand Jury presentation because, for the Grand Jury to find a conspiracy, a specific and common agreement between and/or among conspirators must be demonstrated and, upon demonstration of that conspiracy, at least one overt act must be found. People v. Ramos, 19 NY3d 417 (2017). While, as here, there may have been evidence regarding multiple overt acts, there must also be “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which there are individual manifestations.” People v. Fiore, 34 NY2d 81, 85 (1974) (internal citations omitted). As the Court of Appeals explains, [i]t is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant, to impose punishment, not for the socially harmful agreement to which defendant is a party, but for substantive offenses in which he did not participate.” People v. McGee, 49 NY2d 48, 58 (1979)(internal citations omitted).Since evidence of an overt act is necessary to establish the crime of conspiracy, People v. Ramos, supra; Robinson v. Snyder, 259 AD2d 280 (1st Dept 1999), Iv den 93 NY2d 810 (1999), in a trial where defendants are charged with conspiracy, the petit jury must be instructed as to the specific overt acts alleged against each defendant. CJI2d[NY] Penal Law Article 105 (hereinafter “CJI”). The instruction reads:Under our law, the People must also prove that one of the conspirators committed an overt act in furtherance of the conspiracy. The agreement to engage in or cause the performance of a crime is not itself an overt act. The overt act must be an independent act that tends to carry out the conspiracy. The overt act can be, but need not be, the commission of the crime that was the object of the conspiracy.In this case the alleged overt act[s] is [are]: (specify)Does the mandate that at least one overt act be specified in the petit jury instruction compel that the Grand Jury be similarly charged? This court responds in the affirmative.To satisfy their burden of properly instructing the Grand Jury regarding the elements of charged crimes, courts have cited with approval to prosecutors using language identical or substantially similar to the CJI on a particular subject (see People v. Griggs, 108 AD3d 1062 (4th Dept 2013.), lv den 21 NY3d 1074 [2013]), and have dismissed indictments where prosecutors failed to read the CJI verbatim (see People v. Goetz, 116 AD2d 316 [1st Dept 1986] rev’d on other grounds 68 NY2d 96 [1986]; People v. Thompson et al., 51 Misc3d 1222[A] [Supreme Court, NY County, 2016]).3 This court sees no reason, nor has the District Attorney posited one, to countenance deviation from the CJI when instructing the Grand Jury regarding the elements of conspiracy.In sum, as legal advisor to the Grand Jury, the prosecutor must instruct that body regarding the elements of each crime that they consider. For conspiracy charges, the elements include commission of an overt act. Thus, prosecutors must set forth, in their Grand Jury instructions, the specific overt act(s) that they contend were committed in furtherance of the conspiracy. In addition, the Grand Jury instruction for a conspiracy count should mirror the petit jury instruction. Since the trial instruction mandates specification of at least one overt act, the District Attorney must similarly so instruct the Grand Jury. In the instant case, the District Attorney did not do so; the prosecutor did not specify any overt acts, let alone the 83 listed in the Indictment. Therefore, the court is compelled to dismiss the Indictment.2. Preventing Undue Prejudice to the Defendants.Requiring that the Grand Jury be charged specifically regarding overt acts is also appropriate given the inherent prejudice that arises because of uncharged crimes evidence. To prove a conspiracy, the evidence presented is competent if it “bears directly and cogently upon the defendant’s guilt of the charged crime.” People v. Grutz, 212 NY 72,79 (1914); see also People v. Duffy, 212 NY 57, 70 (1914)(“Some connection between the crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received”). One way of demonstrating that connection is the overt acts.United States v. Bertolotti, 529 F2d 149 (2nd Cir 1975), describes conspiracy cases as particularly ripe for prejudice to defendants due to presentation of uncharged crimes evidence, particularly with respect to “variance.” Variance describes evidence of multiple conspiracies being charged as a single conspiracy. See also Leisner, supra, at 274 (“the variance between the pleading of a single conspiracy and the hypothetically assumed proof of multiple conspiracies substantially prejudiced the defendant’s rights[and] reversal [is] warranted”). This is what was done in the instant Grand Jury presentment. In Bertolotti, the indictment was dismissed because the evidence supporting multiple conspiracies prejudiced the jury to a substantial degree. Thus, Bertolotti holds that, while overt acts alone do not a conspiracy make, the overt acts show the “mutual dependence and assistance among spheres” that illustrates that the individual actor was aware of his/her part in a larger organizational scheme. Bertolotti, supra, at 155.In a trial court matter, People v. Hopson, 2001 NYLJ LEXIS 2520 (County Court, Suffolk County, 2001), the court dismissed the indictment for failure of the prosecutor to charge the grand jury regarding the possibility of multiple conspiracies rather than one single conspiracy. Compare Leisner, supra. The Hopson court cited first to Leisner’s holding that since the “clarity of the charge is so crucial in these complex conspiracy trials, a charge must be given explicitly recognizing the possibility of multiple conspiracies and directing an acquittal in the event that the jury concludes that something other than a single integrated conspiracy was proven.” Hopson, supra, 6, quoting Leisner, supra, at 149-50. Hopson went on to hold that, due to this complexity, such a clear charge is equally important at the grand jury stage, as Leisner noted it is at trial. Consequently, the Hopson court held, to insure that there is sufficient proof of a single overarching conspiracy including all co-conspirators, and not one or more lesser conspiracies, a charge designating specific overt acts for consideration was necessary and that failure to so charge was fatal to the indictment. Upon review of the evidence of conspiracy as to all of the defendants, the Hopson court dismissed the charge as to several.One out-of-state case makes this point as well. In Feagles v. Superior Court, 11 Cal App3d 735, 738-739 (1970), which is similar to the case at bar, the court tested the sufficiency of the evidence in the grand jury proceeding against the language of the indictment to determine if proof of each overt act in the indictment was supported in the record. Under the California Penal Code, as in New York, the District Attorney is required to allege and prove commission of at least one overt act to make out its prima facie case. There, the failure of the prosecutor to charge specific overt acts to the grand jury justified dismissal because “were the People to charge a specific overt act and fail to prove it, but prove a completely different act, a defendant might be taken by surprise.” Id., at 739-740.This approach is consistent with DiFalco, supra, because it is grounded in the requirement that the District Attorney’s actions in the Grand Jury not result in unfair prejudice to the defendant. Therefore, the prosecutor should be required to instruct the Grand Jury regarding the overt acts which will be set forth in the indictment. Failure to do so mandates dismissal of the conspiracy charges.3. Usurpation of the Grand Jury’s Inherent Function.New York State Constitution, article I, 6, provides that “[n]o person shall be held to answer for a capital or otherwise infamous crimeunless on indictment of a Grand Jury.” In essence, the Grand Jury acts as a “buffer between the State and its citizens.” People v. Calbud, supra. One of its core functions is “to protect citizens from having to defend against unfounded accusations.” People v. Valles, supra; People v. Huston, 88 NY2d 400 (1996)(“the Grand Jury shields against prosecutorial excesses and protects individuals from unfounded prosecutions”). As the Court of Appeals has held, a “Grand Jury proceeding is properly an investigation rather than a prosecution” People v. Ianniello, 21 NY2d 418, 424 (1968), cert denied 393 US 827 (1968).With respect to imposing criminal charges, “[t]he District Attorney has broad discretion in determining when and in what manner to prosecute a suspected offender. People v. DiFalco, supra, at 486. Nonetheless, it is the Grand Jury who has the “broad power to indict a defendant upon its independent determination that there is legally sufficient evidence that crimes have been committed and reasonable cause to believe that the defendant committed the crimes charged.” People v. Wilkens, 176 AD2d 978 (2d Dept 1991). The charging powers vested in these two entities require them to work together “to determine under which of the applicable sections of a statute an indictment should be found.” People v. Malavassi, 248 AD 784 (2d Dept 1936) aff’d 273 NY 460 (1936); c.f. United States v. Fisher, 225 FSupp3d 151 (WDNY 2016) (prosecutors have a duty to present the matters the government wants the grand jury to consider and their authority to seek an indictment “has long been coterminous with the authority of the grand jury to entertain prosecuting those charges”).Unique to an indictment containing conspiracy charges is the requirement that it specifically set forth at least one overt act allegedly committed in furtherance thereof. PL 105.20; People v. Pichardo, 160 AD3d 1044 (3d Dept 2018); eople v. Pike, 63 AD3d 1692 (4th Dept 2009) ; People v. Russo, 57 AD2d 578 (2d Dept 1977). Failure to do so mandates dismissal of the indictment. Id. In the instant case, after the Grand Jury voted a true bill, the prosecutor independently selected 83 overt acts and listed them in the indictment.The drug conspiracy alleged herein involves the nine defendants and others. As charged, Borsiquot and Juin provide narcotics to the other seven charged individuals for redistribution. While the Indictment specifies 83 overt acts committed in furtherance of that conspiracy, and while some evidence of those acts was presented to the Grand Jury, the People failed to charge the Grand Jury specifically regarding any of those 83 acts. As such, the Grand Jury did not necessarily pass on the sufficiency of the evidence as to all of those 83 acts. Rather, pursuant to the prosecutor’s legal instruction, it could have indicted by finding the evidence sufficient as to as few as one of those overt acts and found the evidence insufficient as to the remaining 82. Nevertheless, when preparing the indictment for filing, the District Attorney freely chose how many (at least one) and which acts to plead. This-the choice of which overt acts had been proven and should stand in the indictment-was a decision that should have been made by the Grand Jury, not by the prosecutor.Absent a charge to the panel regarding any specific overt act, the Grand Jury’s essential function of determining legal sufficiency was usurped. Put another way, were the court to allow prosecutors on their own to determine which overt acts should be set forth in an indictment, the Grand Jury’s role of determining the sufficiency of the evidence as to each of those acts for each defendant would be eviscerated. Since the instant Grand Jury charge merely required prima facie proof of the commission of a single overt act without specifying same, prosecutors were free to charge commission of 83 overt acts in the indictment without any requirement whatsoever that the Grand Jury vote as to the sufficiency of the proof as to any one of them. Further, absent a vote by the panel on the sufficiency of the evidence as to each defendant’s participation in the conspiracy (and each of the 83 alleged overt acts), the instant Grand Jury presentation has the potential of improperly exposing one or more defendants to liability for the entire conspiracy (including all of the overt acts) without determining the sufficiency of the proof thereon. Leisner, supra; Bertolotti, supra. This, too, usurps an inherent function of the Grand Jury.The importance of having the Grand Jury vote on the specific overt acts alleged in the indictment is underscored by the history of the crime of conspiracy in New York. At common law, “[t]he offense of conspiracy was completeon proof of the unlawful agreement. It was unnecessary to allege or prove any overt act in furtherance of the agreement.” People v. Sheldon, 139 NY 251, 265 (1893); See also People v. Menache, 98 AD2d 335(2d Dept 1983). As discussed supra, the statutory definition of conspiracy adds, as an element, commission of an overt act in furtherance thereof. CPL 105.20. In so doing, the legislature clearly indicated that “the basis of conspiratorial liability is not to punish the agreement per se, but rather, like other inchoate crimes, to punish the firm purpose to commit the substantive crime.” People v. Schwimmer, supra, at 94-95. It is, therefore, appropriate for the Grand Jury to decide whether any or all of the overt acts set forth in the indictment were sufficiently proven and, if so, whether any or all of them were committed by a co-conspirator in furtherance of the conspiracy. To permit the prosecutor to make that prima facie determination, as was done here, usurps the inherent role of the Grand Jury to determine whether sufficient evidence was presented to it. Therefore, the Indictment must be dismissed.III. CONCLUSIONIn sum, there was insufficient evidence presented to the Grand Jury to establish, prima facie, the single conspiracy alleged in the two count Indictment. In addition, the failure to charge the Grand Jury as to the 83 specific overt acts chosen by the prosecutor for inclusion in the Indictment was a defect in the proceeding. That failure abrogated the prosecutor’s role as legal advisor to the Grand Jury, created undue prejudice to the defendants due to presentation of uncharged crimes evidence, and usurped the Grand Jury’s inherent function to determine whether sufficient evidence was presented to it. Thus, this is such a case where the error compels the “exceptional remedy” of dismissal. People v. Darby, supra.This court notes that, while CPL 210.35(5) does not require a showing of actual prejudice to the defendant, the Court of Appeals has indicated that the potential for prejudice must be articulable. People v. Sayavong, 83 NY2d 702 (1994). The court is also mindful of the admonition in numerous decisions that “dismissal of an indictment is a drastic and exceptional remedy.” E.g., People v. Read, 71 AD3d 1167, 1168 (2nd Dept 2010). Or, as the Court of Appeals has held, “isolated instances of misconduct will not necessarilylead to the possibility of prejudice.” People v. Huston, supra, at 409. Rather, a determination of the possibility of prejudice turns on the facts of each particular case. Id. Compare DiFalco, supra (indictment dismissed due to the presence of an unauthorized prosecutor in the grand jury – prejudice presumed).4 As discussed above, this is such a case.Therefore, Defendants’ motions to dismiss for failure to present sufficient evidence in support of the crimes charged as well as the prosecutor’s failure to charge the Grand Jury as to the 83 specific overt acts which are set forth in the indictment must be granted. The People are granted leave to re-present the matter to the Grand Jury should they be so advised.In making this determination, the Court does not find that release of the Grand Jury minutes or certain portions thereof to the parties was necessary to assist the Court. Based on the dismissal of the instant indictment, all other motions are denied as moot.The foregoing constitutes the Decision and Order of the Court.Dated: New City, New YorkJuly 23, 2018
