AMENDED DECISION AND ORDER The court’s decision captioned “Decision/Order,” dated and ordered on December 5, 2022, is hereby vacated and amended to correct the counts which must be dismissed or reduced. The defendant is charged with Assault in the Second Degree and other related charges listed in the indictment. In the People’s initial submission to the court of the Grand Jury minutes, there was no indication that the Grand Jury had been charged on the legal definitions of “physical injury,” and “dangerous instrument,” as required for Count 1, or “serious physical injury,” as required for Count 2. Accordingly, Counts 1 and 2 were dismissed with leave to re-present, because of potential prejudice to the ultimate decision reached by the Grand Jury, pursuant to C.P.L. §210.35(5). On January 5, 2023, the People moved to Renew and Reargue the court’s Decision and Order dismissing those counts. The defense did not file opposition. In their January 5, 2023 filing, the People, for the first time, provided the court with instructions that were given to the Grand Jury panel that decided the instant matter — albeit instructions from a different case. That case was voted out on August 3, 2022. Of significance here, the definition of “serious physical injury” contained in P.L. §10.00(10) was read to the Grand Jury as a part of the August 3, 2022 presentation. On August 5, 2022, the Grand Jury voted for a True Bill in the instant matter, though the “serious physical injury” definition was not a part of the instructions read to the jury at that time. “A motion to inspect the grand jury minutes is a motion by the defendant requesting an examination by the court and the defendant of the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges or charge contained in such indictment.” C.P.L §210.30(2) (emphasis added) (See also C.P.L. §210.30[3], requiring the Court to “examine the minutes…”) It is sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime. See People v. Calbud, Inc., et al., 49 NY2d 389 (1980). The court now finds, having received the transcript of the preliminary instructions given to the Grand Jury, that the District Attorney’s office correctly charged the Grand Jury with respect to the definition of “serious physical injury,” albeit in a piecemeal manner. A better practice would be to read the relevant definitions of legal terms at the time that the Grand Jurors are charged on the law, as the ADA did in the unrelated August 3, 2022 Grand Jury presentation on which the People now rely. Nonetheless, Count 2, charging Attempted Assault in the Second Degree, will be restored, the People having now complied with CPL §210.30 as to that count by providing a transcript of the instructions given to the Grand Jury which would allow them to properly decide whether or not there was reasonable cause to believe that the defendant attempted to cause serious physical injury to the complainant. The court will decline to restore Count 1, charging Assault in the Second Degree, PL §120.05(2), charging that the defendant, with intent to cause “physical injury” to the complainant, did so by means of a “dangerous instrument.” The People claim that the Grand Jury was instructed on the legal definitions of “physical injury” and “dangerous instrument” at the beginning of their term, and assert that this is the common practice. Crucially, they do not provide a transcript to substantiate this. The People thus fail to comply with the plain language of the statute, which requires that the stenographic minutes of the instructions be turned over. This impairs the Court’s ability to determine whether the Grand Jury proceeding was proper. The People’s motion to reargue must thus be denied as to Count 1 because of the potential prejudice to the ultimate decision reached by the Grand Jury. Accordingly, it is hereby: ORDERED, that Count 2 is restored, being legally sufficient; and it is further ORDERED, that Count 1 is dismissed, with leave to re-present to another grand jury. The case is next on for February 16, 2023, in TAP-2. The foregoing constitutes the decision and order of the court. Dated: February 2, 2023
