After review of the motion papers, the minutes of the proceedings before the grand jury, the indictment, the minutes from the hearing held on October 7, 2020 via Skype, letters filed with the court, and other papers on file with the court, defendant’s motion to dismiss the indictment is granted. A grand jury indictment is authorized when (a) the evidence before the grand jury was legally sufficient to establish that such person committed an offense and (b) competent and admissible evidence before the grand jury provides reasonable cause to believe that such person committed such offense. See CPL §190.65(1). “A grand jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution.” People v. Lancaster, 69 NY2d 20, 30 (1986). “As a general principle of common-law evidence, lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts. It is left to the jury to draw the appropriate inferences arising from the facts.” People v. Russell, 165 AD2d 327 (1991). The court, however, may allow lay opinion testimony in its discretion to aid the jury’s identification process when there is “some basis for concluding that the witnesses were more likely to correctly identify the defendant from the videos than was the jury.” People v. Boyd, 151 AD3d 641 (2017). Testimony regarding the identity of the defendant depicted on video surveillance may properly be admitted when the evidence is based on the witness’s familiarity with the defendant from prior occasions. People v. Sanchez, 95 AD3d 241 (2012)(emphasis added). “Such testimony is most commonly allowed in cases where the defendant has changed his or her appearance since being photographed or taped, and the witness knew the defendant before that change of appearance.” People v. Coleman, 78 AD3d 457 (2010). If the court improperly admits such identification testimony from a non-witness, that evidence may be found to be harmless when there is “no reasonable possibility that the defendant and the man of identical dress and appearance depicted in the videotape were two different people.” People v. Calderon, 171 AD3d 422 (2019). The Court of Appeals has found that if the Grand Jury is improperly influenced, the integrity of Grand Jury proceedings is impaired. People v. Huston, 88 NY2d 400 (1996). The Court stated that the New York Legislature “requires that an indictment be dismissed where the Grand Jury proceeding is defective. See, CPL §210.20(c). Furthermore, dismissal of the indictment is specifically compelled by statute when the integrity of the Grand Jury proceeding is impaired and prejudice to the defendant may result. See, CPL §210.35(5). In Huston, the Court found that because the evidence presented “usurped the function of the Grand Jury and biased the proceedings against the defendant, it impaired the integrity of the Grand Jury proceedings and created a substantial risk of prejudice to the defendant.” Huston at 402. “Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment.” Id. at 409. These standards necessary to uphold a grand jury presentation were not met in the instant case. Here, the problematic portion of the presentation concerned the identification testimony from law enforcement. Specifically, the detective narrated his observations of the video surveillance evidence to the Grand Jurors. It must be noted that the detective was not a witness to the contents of the video surveillance evidence and the video introduced here was of marginal quality. He simply viewed the evidence and opined about what he saw. The Grand Jurors were denied the opportunity to view, evaluate, and decide for themselves what the video surveillance evidence showed and what if anything it proved. Instead, the Grand Jurors only heard the detective’s opinions as to what he saw on this video and what he thought it demonstrated which, is completely irrelevant. In effect, the detective was made the fact finder and co-opted the job of the Grand Jury. The detective never indicated in his testimony that prior to arresting the defendant that he had prior contacts with the defendant sufficient to establish a basis for any identification. Furthermore, the People never claimed that the defendant had altered his appearance. The People rely on the portion of the detective’s testimony in which he establishes that both defendants identified themselves in video surveillance. However, in those particular videos, the defendants are not allegedly committing any crime as Luis Morrillo was simply in his own building and Miles Gibson in Krystal Bar and Lounge. Based on those identifications, the People argue that the detective was allowed to identify the defendants in other video surveillance clips. However, there is no caselaw to support the proposition that law enforcement can testify as to the identity of individuals on video surveillance where the officer did not observe the contents of video firsthand and the subjects of the video were not previously known to law enforcement prior to any arrest that results. The People have not established that the detective had any familiarity with the defendants from prior occasions. This court is not prepared to rule that based on an arrest alone, law enforcement personnel satisfy the requirement laid out in precedent necessitating prior familiarity with the defendant. While it may be permissible for the witness to testify in the Grand Jury about similarities between the appearance and distinctive clothing of the men in the video as compared to the defendants, without prior familiarity the witness does not have a basis to positively identify the men. In this grand jury presentation, the detective offered lay opinion testimony over matters outside of his personal knowledge including the identity of the defendants as the individuals who committed criminal acts. The testimony about what the video allegedly depicted, was offered to support the People’s position that the defendant committed the crimes of Murder in the Second Degree, Manslaughter in the First Degree and two counts of Criminal Possession of a Weapon in the Second Degree. The detective did not just identify the defendants on several video surveillance clips but also testified as to what the defendants were thinking at certain points of the footage. He goes further by also testifying to several conclusions that cannot be ascertained by just viewing the video evidence. If the People were not going to call a witness with firsthand knowledge of the events contained in the video, they were free to take still photos from where the defendants identified themselves and let the grand jurors compare those pictures with the individuals purportedly committing crimes in other video clips. To the contrary, the People offer testimony regarding the video evidence in the instant case that “usurped the function of the Grand Jury, which remains the exclusive judge of the facts with respect to any matter before it. Id. at 407. The error here can hardly be called harmless because there is at least some doubt as to whether the defendants were the individuals depicted in several of the video surveillance clips. The detective, in his Grand Jury testimony, even admitted that it was “very difficult to see” when referring to the video surveillance evidence of the shooting. Considering the grainy quality of the video evidence here, and the detective’s own admission regarding his efforts to try to ascertain what the video depicts, there exist a reasonable possibility that the defendants and the persons depicted in the videotape allegedly committing criminal acts were not the same. Even with a curative instruction informing the Grand Jurors that “although the video speaks for itself” and that the Grand Jurors were “free to accept and reject any testimony and draw [their] own conclusions and opinions about what is shown on the video surveillance,” the damage was already done. Consequently, this presentation caused a situation where “prejudice to the defendant” (see, Huston at 409) was manifest. It is also noted that the curative instruction here was not offered at the time of the prejudicial testimony was offered but with the final instructions. The court finds that the Grand Jury proceedings in this case were seriously impaired, and that the defendant was palpably prejudiced. The instant indictment is therefore dismissed. The People are granted leave to represent this case to the grand jury within 45 days of the issuance of this opinion. Given the result, it is not necessary for the court to decide the defendant’s other applications. This constitutes the decision and order of the Court. Dated: November 17, 2020
