The defendant, RAMAR SMITH, having been indicted on April 1, 2021, for Attempt to Commit the Crime of Murder in the Second Degree (Penal Law §110/125.25[1]); Assault in the First Degree (Penal Law §120.10[1]); Criminal Use of a Firearm in the First Degree (Penal Law §265,09[1a]); Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03[3]); Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03 [1(b)]); Criminal Possession of a Firearm (Penal Law §265.01-b[1]); Assault in the Second Degree (Penal Law §120.05[2]); Aggravated Cruelty of Animals (Agriculture and Markets Law §353-a[1]); and Overdriving, Torturing and Injuring Animals; Failure to Provide Proper Sustenance Aggravated Cruelty of Animals Criminal (Agriculture and Markets Law §353). A stipulation in lieu of motions was executed and approved by the Court on July 12, 2021. Pursuant thereto, the Court has inspected the Grand Jury minutes in camera. The minutes reveal that a quorum of the Grand Jurors was present during the presentation of evidence. The indictment substantially conforms to the requirements set forth in CPL §200.50. However, upon inspection of the minutes, this Court has found substantial defects in the presentation of the case. Defects in a grand jury presentation require dismissal where “the integrity of the [g]rand [j]ury proceeding is impaired and prejudice to the defendant may result.” (People v. Huston, 88 NY2d 400, 402 [1996], quoting CPL §210.35[5]). This Court concludes that multiple errors impaired the integrity of the Grand Jury proceeding and prejudiced the defendant, Ramar Smith. The prosecution contends that the defendant shot an individual in an attempt to commit murder, During the Grand Jury presentation, the prosecution called three witnesses. During the presentation, the prosecution introduced into evidence a document (Exhibit 4), purporting to be a post from the social networking website known as Facebook. The relevant portion of the exhibit contains a phrase, “Fresh off a hit moving sturdy” (“phrase”). The post is dated January 13, 2020, and is allegedly published by a username, Riiz BinParkin. There is no profile photo depicted in the exhibit. It was introduced by the prosecution as purportedly an admission of the defendant to the attempted murder. This Court finds the exhibit was improperly entered into evidence. The prosecutor failed to lay a proper foundation for its admission. The prosecutor did not elicit any details from the witness that he/she knew that the exhibit, username, and post was from an account owned or “controlled by the defendant.” (People v. Price, 29 NY3d 472, 480 [2017]), In fact, no testimony was elicited to connect the defendant to the Facebook account name (Riiz BiriParkin) or the actual posting. There was no testimony from the witness of any evidence connecting the individual to the Facebook account of Riiz BinParkin. The Court finds that the prosecution failed to establish that the Facebook page “belonged to and was controlled by the defendant.” (Price at 480); (see Grand Jury tr at 14, lines 16-17; at 24, lines 5-10; at 25, lines 3-14). In addition, the prosecution failed to establish who owned the account; who maintained the account; who published the post; when it was accessed; and lastly, “whether it was a fair and accurate representation of what was posted.” (People v. Samuel, 71 Misc 3d 1203[A], 4 [Sup. Ct. 2021]; People v. Price, 29 NY3d 472, 478-480 [2017]; People v. Wells, 161 AD3d 1200, 1200 [2d Dept 2018]). Authenticating a document is a condition precedent to its admission. (Price at 476). Therefore, its admission lacked a proper foundation and “as such, constituted error as a matter of law.” (Price at 480). Further, this Court finds that the phrase does not contain any unique and/or “identifying characteristic(s)” that it is so obviously connected to the alleged incident, even circumstantially. (People v. Goldman, 35 NY3d 582, 59.5-596 [2020]). The phrase has no identifiable relationship to a shooting in Hempstead, on Elmwood Avenue. In fact, the phrase is a lyric contained in a rap song. The introduction of the exhibit was highly prejudicial because without proper authentication it was inadmissible. The prejudicial effect of this evidence greatly outweighed its probative value and therefore, was improperly introduced to the Grand Jury. (Samuel at 4). The prosecutor compounded the prejudice by asking a series of leading questions about an exhibit that should not have been in evidence in the first place. Leading questions are permissible by the prosecutor when they are used sparingly. However, the prosecutor’s use of leading questions during this Grand Jury proceeding were not so “limited.” (People v. Miller, 110 AD3d 1150, 1151 [3d Dept 2013]). The leading questions were used by the prosecution to attempt to establish the meaning of the phrase. In response to the leading questions, the witness gave lay opinion of the phrase’s meaning. (see Grand Jury tr at 26, lines 1-25; at 27, lines 1-4). A court may, in its discretion, allow a lay witness to testify as to “the meaning of statements […] when words have a doubtful, hidden, or ambiguous meaning.” (People v. Portanova, 56 AD2d 265, 272 [4th Dept 1977]; People v. Irvine, 40 AD2d 560, 560 [2d Dep't 1972]). A lay witness opinion is permissible to describe “the meanings of slang references and code words used by [a] defendant, and commonly used by drug dealers, since they are not within the ken of the average juror.” (People v. Vanegas, 243 AD2d 261, 262 [1st Dept 1997]). This Court finds that the lay witness’ opinion of the phrase’s meaning was improperly admitted. The testimony lacked a sufficient foundational basis for its admission. (People v. Russell, 165 AD2d 327, 332-335 [2d Dept 1991], affd, People v. Russell, 79 NY2d 1024, 1025 [1992]). This Court also finds that the witness’ opinion did not serve to aid the Grand Jury in making an independent assessment regarding the meaning of the phrase. (Russell, 79 NY2d at 1025). Further, even if the lay opinion was properly admitted, the prosecution should have instructed the Grand Jury regarding the lay opinion. The witness’ “opinion is merely an aid to (the jurors’] decision based upon all the facts and circumstances of the case and that [the jurors] are entitled to either accept or reject it.” (Russell, 165 AD2d at 336). This instruction would have allowed the Grand Jurors an opportunity to form their own opinion as to the meaning of the phrase. The failure to instruct the Grand Jury that the witness’ opinion could have been rejected was an error. The lay witness’ opinion “usurped the function of the [G]rand [J]ury, which remains the exclusive judge of the facts with respect to any matter before it.” (Huston, 88 NY2d at 407). Further, the prosecutor introduced the exhibit, as an admission of the defendant and failed to instruct the Grand Jury pursuant to CPL §60.50, corroboration. This Court finds that the failure to do so “created a risk the [G]rand [J]urors would indict on the [defendant's] admission alone.” (People v. Samuel, 71 Misc 3d 1203 [A], at 4). The risk in this Grand Jury proceeding was overwhelming since the exhibit was improperly authenticated and entered into evidence. the prosecutor should have instructed the Grand Jurors that “a person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed,” (see CPL §60.50). “Dismissal of an indictment pursuant to CPL §21035 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury.” (Miller, 110 AD3d at 1150; accord People v. Sutherland, 104 AD3d 1064, 1066 [3d Dept 2013]). The Court finds that “the cumulative effective [sic] of these evidentiary errors was such that it impaired the integrity of the [G]rand [J]ury proceedings.” (Samuel at 4). The defendant was clearly prejudiced since the Grand Jury returned an indictment based on the introduction of inadmissible evidence. Id. This Court concludes that the Grand Jury proceeding was defective pursuant to CPL §210.20(1)(c). The Grand Jury proceeding did not comport to CPL §190.00, and the failure to conform impaired the integrity of the proceedings, which resulted in prejudice to the defendant (Sutherland at 1065); (see CPL §210.35(5)). The defendant’s motion to dismiss is hereby granted without prejudice and the People are granted leave to re-present the case to a new Grand Jury within thirty (30) days. This decision and order is hereby sealed and may not be made available to any person other than a court reviewing this order, and that the same may only be unsealed by this Court, an appellate court, or other court of competent jurisdiction. SO ORDERED. Dated: September 21, 2021
