The defense may raise various motions against a grand jury presentation. CPL 210.35. One of these is that the grand jury proceeding fails to conform to statutory requirements “to such a degree that the integrity thereof is impaired and prejudice to the defendant may result,” CPL 210.35(5).
A motion to dismiss that challenges the grand jury’s impairment is part of the omnibus motion.
As stated by the Court of Appeals, this “exceptional remedy of dismissal is warranted only when there is a defect in the indictment created a possibility of prejudice.” Dismissal under this standard “should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury,” People v. Huston, 88 NY2d 400 (1996).
Possibility of prejudice
The impairment standard, while “very high and very precise,” does not require that prejudice result, People v. Huston.
The issue may require a hearing, People v. Washington, 82 AD3d 1675 (4th Dept 2011).
Typically, the introduction of inadmissible evidence will result in dismissal under this standard only where the other evidence is insufficient to sustain the indictment. Similarly, isolated incidents of misconduct are insufficient, People v. Thompson, 22 NY3d 687 (2014). Even perjurious grand jury testimony, if the prosecutor was unaware, is insufficient to constitute impairment, so long as other testimony supporting the charge was presented, see People v. Salvodon, 127 AD3d 1239 (2d Dept 2015).
In Huston, where the prosecutor’s misconduct was intentional, usurped the grand jury’s function, and biased the proceedings against the defendant, the Court of Appeals found that the grand jury’s integrity was impaired, and dismissed the indictment.
The failure to properly charge the grand jury on an asserted defense may constitute impairment, People v. Calkins, 85 AD3d 1676 (4th Dept 2011). But where the evidence will not reasonably support the defense, it need not be charged, People v. Agona, 119 AD3d 1406 (4th Dept 2014).
Where a grand juror, who was related to some of the victims, was not permitted to testify in those counts involving her relatives, but participated on other counts, impairment was found, People v. Connolly, 63 AD3d 1703 (4th Dept 2009).
The introduction of clearly inadmissible evidence (phone conversations that were recorded without either party’s permission) was held to impair the grand jury’s integrity, People v. Heffner, 187 Misc 2d 617 (County Court 2001).
Other grand jury motions
Among the other motions relating to a grand jury, CPL 210.35, is one that requests inspection of grand jury minutes and challenges the sufficiency of the evidence presented, CPL 210.30. Such a motion, also brought before trial, is not one that survives after conviction at trial, where the evidence was legally sufficient, CPL 210.30(6); People v. Highsmith, 124 AD3d 1363 (4th Dept 2015).
Raised after conviction or guilty plea
In contrast, an “impairment” motion is one that survives a trial and may be raised on appeal after conviction at trial, People v. Huston; People v. Calkins. The issue of impairment may also be raised after guilty plea, People v. Washington.
Where the trial court grants the defense motion, the prosecution may challenge the ruling on appeal, CPL 450.20(1).
Gary Muldoon is a lawyer and author of “Handling a Criminal Case in New York.” He can be reached at email@example.com.