[*1] People v Shirah 2008 NY Slip Op 525...ciary Law § 431
Gardner should know what is admissible as evidence in a Grand Jury and what isn't, if she doesn't know that as the District attorney she surely isn't quality to be Judge.
Yates County District Attorney
(Jason L. Cook, Esq., of Counsel)
Attorney for the People
Defendant, Michael W. Shirah, was indicted on July 11, 2008 for one count of Attempted Assault in the Second Degree, a class E felony, in violation of Penal Law §§110.00 and 120.05(9) and two counts of Endangering the Welfare of a Child, a class A Misdemeanor, in violation of Penal Law §260.10(1). Defendant was initially charge by Informations in the Village of Penn Yan Justice Court on June 18, 2007 for one Count each of Assault in the Third Degree (Penal Law §120.00) and Endangering the Welfare of a Child [Penal Law §260.10(1)] both class A Misdemeanors.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated November 14, 2008 and accompanying Affirmation.
Based on the defendant's motion papers, the District Attorney's affirmation in opposition dated December 5, 2008; all submissions, the Grand Jury Minutes, the arguments had and all the proceedings herein the Court decides as follows:
THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM
TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS
Whether an indictment must be dismissed is governed by CPL §210.35, and requires a showing of "possible prejudice." People v. Huston, 88 NY2d 400; People v. Di Falco, 44 NY2d 482.
"Dismissal of indictments under §210.35(5) should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial influence or bias." Huston, supra , p. 409.
A review of the grand jury minutes in the case at bar shows that the People did not charge the justification defense. Thus, the court must determine, whether, the record viewed in the light most favorable to the defendant supported the justification defense. "If the District Attorney failed to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL §210.35; People v. Valles, 62 NY2d 36, 38; People v. Calbud, Inc., 49 NY2d 389)." People v. Samuels, 12 AD3d 695.
there was adequate proof before the Grand Jury that the defendant, a parent of a child under age 21, used non-deadly physical force upon the child "when, and to the extent that he reasonably believes it necessary to maintain discipline". Penal Law §35.10(1).Therefore, the failure of the District Attorney to give the "necessary and appropriate" charge of justification requires that Count I (Attempted Assault Second Degree) be dismissed.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
Dated: December _____, 2008.
W. Patrick Falvey
Yates County Judge