DECISION AND ORDER The defendants move this Court to inspect the Grand Jury minutes and, upon such inspection, seeks dismissal of the instant indictment, challenging the legal sufficiency of the evidence presented, the propriety of the legal instructions provided, and the manner of the presentation. This Court conducted an in-camera review of the Grand Jury minutes and finds as follows: It is well established that the law requires the People to present legally sufficient evidence that there is reasonable cause to believe that a crime was committed, and that the defendant committed that crime. The burden of proof for a Grand Jury proceeding is not beyond a reasonable doubt, but rather that the People must make a prima facie showing utilizing legally admissible evidence (see People v. Pelchat, 62 NY2d 97; People v. Calbud, Inc., 49 NY2d 389) (emphasis added). Said burden, of introducing legally admissible evidence and providing proper legal instruction, was not satisfied by the government in this case. Moreover, this Court also finds that the proceedings were defective within the meaning of Criminal Procedure Law (hereinafter: C.P.L.) §210.35(5). There is no dispute that the People enjoy broad discretion when determining how to present a case to the Grand Jury (see People v. Rockwell, 97 AD2d 853 [3rd Dept, 1983]). “The prosecutor’s discretion in presenting the case to the Grand Jury, however, is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also see that justice is done; ‘as a public officer he owes a duty of fair dealing to the accused and candor to the courts’ (People v. Pelchat, 62 NY2d 97, 105).”. People v. Lancaster, 69 NY2d 20, 26 (1986). “The District Attorney’s duties as a public officer are quasi-judicial in nature and in the performance of his duties he must not only be disinterested and impartial but must also appear to be so.” (People v. Dzeloski, 161 Misc2d 867, 868-9 [Bronx Co Sup Ct, 1994], citing People v. Lofton, 87 Misc2d 572 [Kings Co Sup Ct, 1975]). Upon review of the instant presentation, this Court observed that the assistant district attorney made several fatal errors, proffering legally inadmissible evidence before the Grand Jury and failing to deliver an adequate charge on the applicable law, thereby unduly prejudicing the defendants and depriving them of a fair proceeding pursuant to Article 190 of the C.P.L. Time and again during this presentation, the People flouted the rules of evidence by the introduction of substantial amounts of hearsay, as well as speculative testimony, introducing physical evidence without proper authentication and the excessive use of leading questions. Moreover, the People failed to advise the Grand Jury of relevant legal principles critical to their deliberations. “Defects in a Grand Jury presentation require dismissal ‘where the integrity of the Grand Jury proceeding is impaired ‘and prejudice to the defendant may result.” (People v. Houston, 88 NY2d 400, 402 [1996]).” People v. Samuel, 2021 NY Misc Lexis 1328 (Sup Ct Queens County 2021) (Lopez, J.). In regard to the incident that was alleged to have taken place on or about August 19, 2021, the People failed to offer an iota of legally admissible evidence to establish that the decedent listed in People’s Exhibit # 8, the New York City Office of the Chief Medical Examiner’s Autopsy Report, was the individual who defendant Jadis St. Victor is alleged to have killed by gunplay at the time/place of occurrence. The People merely offered a solitary, passing, hearsay comment that the person seen on the video is the decedent, without ever providing a proper, legally admissible identification of that individual or the individual’s remains. Furthermore, the People rely on nothing more than rank hearsay in a failed attempt to establish the element of serious physical injury, as the non-fatal victim testified to information learned from what that witness was informed by various treating medical professionals. The People did not even attempt to cure this defect by the introduction of certified medical records or by the testimony of competent witnesses. In addition, the People improperly admitted hearsay testimony of a witnesses’ observations of the events depicted in video surveillance, which the witnesses watched after-the-fact, not being present to observe the incident in real time (c.f. People v. Franzase, 154 AD3d 706, 707 [2d Dept, 2017]). As such, throughout the presentation, the assistant district attorney introduced a substantial amount of hearsay testimony, without any applicable exception to the hearsay rule. The bulk of the People’s case rests on a compilation of surveillance videos to establish their prima facie case. However, the People failed to lay a proper foundation as proscribed by the rules of evidence, as the record is devoid of testimony authenticating the videos recovered as identical to those on the DVR servers from which they were taken. See People v. Grant, 170 AD3d 888 (2d Dept 2019). This resulted in the publication of a substantial amount of improperly admitted evidence before the grand jury. Finally, after putting before the grand jury that defendant Jadis St. Victor and the decedent were engaged in a shootout on a public street, each being armed and firing rounds in each-other’s direction, the People utterly failed to charge the Grand Jury on the legal concept of Justification or Self-Defense. See People v. Valles, 62 NY2d 36 (1984) (“justification, as an exculpatory defense that if accepted eliminates any grounds for prosecution, should be presented to the Grand Jury when warranted by the evidence”); see also Lancaster, supra (the People are required to instruct the Grand Jury on completed defenses supported by the evidence). Nor did the People charge the Grand Jury on the legal concept of circumstantial evidence, despite there being no direct evidence presented that defendant Jadis St. Victor was the alleged shooter. Here the above-described defects were not cured with the admission of a scintilla of legally competent evidence. C.f. People v. Huston, 88 NY2d 400, 409 (1996) (the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment); and c.f. People v. Kappen, 142 AD3d 1106 (2d Dept, 2016) (Although the prosecutor admitted impermissible evidence during the Grand Jury proceeding, the indictment was based upon sufficient, independent evidence). Due to the People’s inability to establish, to a prima facie standard, defendant Jadis St. Victor’s commission of any crime, let alone a class A felony, by legally competent evidence, the People therefore failed to establish a necessary element of Hindering Prosecution in the First Degree (P.L. §205.65) as to defendant Jean St. Victor. The defendants’ application with regard for dismissal of the instant indictment is hereby GRANTED and said indictment is hereby DISMISSED, pursuant to C.P.L. §210.20(1)(c). Nevertheless, this Court authorizes the People to resubmit the charges to another Grand Jury pursuant to C.P.L. §210.20(4). Pending resubmission of the charges to another Grand Jury, bail conditions for both defendants remain the same pursuant to C.P.L. §210.45(9). This constitutes the decision, opinion and Order of this Court. Dated: October 4, 2021
