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Defendant File Appeal Based on Improper Grand Jury Process


A man has been charged with grand larceny in the third and fourth degrees, forgery in the second degree, criminal possession of a forged instrument in the second degree and petit larceny. It is also alleged that the man executed forged savings account withdrawal slips on six separate occasions thereby stealing a total of $3,400.00.

By decision, the criminal court found that legally sufficient evidence was presented to sustain each of the offenses charged in the indictment. Yet, the court reserved decision on the man’s motion to dismiss the indictment because of its concern for the integrity of the grand jury process, based upon the possible impropriety of the prosecutor’s legal instructions to the grand jury. More specifically, the court questioned the legality of the prosecutor specifically directing the grand jury to disregard exculpatory testimonial evidence of a non-identification of the man at a line-up, after the prosecutor had unilaterally introduced the evidence through the testimony of an alleged eyewitness.

The alleged eyewitness was the former branch manager of a banking institution in which the subject transactions allegedly occurred. After testifying that there were times that he performed the functions of a teller, he was shown three share withdrawal receipts pertaining to four withdrawal transactions that had occurred. By referring to the listed teller identification number on each of those receipts, the witness testified that he performed the four subject transactions, totaling $2,400.00 in withdrawals from the savings account. The witness was then questioned by the prosecutor about his presence and participation in a lineup at the police precinct.

Upon receiving a negative answer to the prosecutor’s inquiry about whether the witness had made a positive identification of the man at the lineup, she simply abandoned that particular line of questioning, never seeking to rehabilitate her witness through a more precise questioning process. Consequently, the grand jury was obviously left with the distinct impression that the said witness failed to identify the man at the lineup, even if he later testified that he was able to identify the same individual after viewing copies of still photographs generated from video camera surveillance photographs taken during the course of the same transactions.

Faced with the invalid prospect of having the grand jury consider the exculpatory component of the witness’ testimony and electing not to re-call the former bank manager as a witness, the prosecutor decided to remove the unfavorable material from the record.

The prosecutor was then forced to make reference to the testimony of a prior witness, a police officer, who seven days earlier had testified about the mechanics of the lineup and the presence of the man therein. The officer also testified to the fact that the witness had viewed the lineup, but he was not asked the results of the identification procedure that he conducted.

At the conclusion of the witness’ testimony and immediately prior to her charge on the law, the prosecutor gives instructions to the grand jury.

In seeking to sustain the validity of the indictment, sources revealed that the prosecutor has chosen to label the quoted passage as a curative instruction. Contending that she acted in good faith and that no prejudice inured to the man as a result of the so-called curative instruction, the prosecutor argues that the man’s motion to dismiss the indictment should be denied.



Furthermore, it is the opponent’s position that the man would have been indicted for the same charges regardless of whether or not any evidence concerning the lineup was presented.

Subsequently, the man asserts that the challenged legal instructions were anything but curative. Characterizing the prosecutor’s directions as prejudicial and misleading, the man persistently argues that by instructing the grand jury to disregard the highly exculpatory evidence of non-identification, the effect was to mislead the grand jury, thereby prejudicing him by depriving her of her constitutional right to due process of law.

Due in part to the inherently one-sided nature of grand jury proceedings and, in some instances, their potential for abuse, the criminal courts have frequently felt obliged to comment upon the dual role of the prosecutor within the grand jury and to stress the importance of fair dealing and limited discretion.

In addressing the issues and attempting to apply the fair dealing standard to the actions of the prosecutor that resulted in the indictment, the court’s attention is immediately drawn to the prosecutor’s unilateral decision to specifically direct the grand jury to disregard legally competent and exculpatory evidence.

In spite of the argument advanced by the opponent, the criminal court cannot conceive how the prosecutor’s instructions could rationally be construed as curative.

In the case at bar, the prosecutor’s instructions were, at best, an ill considered reaction to the unsatisfactory course of the proceedings and, at worst, an improper attempt to strike legally competent evidence from the minds of the grand jurors, exculpatory evidence that had been admitted at the request and with the knowledge of the prosecutor.

Sources revealed that if the prosecutor hoped to cure something following the witness’ testimony, it certainly wasn’t a defect, an error, an omission or an irregularity. The witness had apparently testified in a truthful manner and his testimony was anything but a surprise to the prosecutor.

But, the court is singularly unimpressed with the alternative explanation offered by the prosecutor, to the effect that since the witness found it inconvenient to appear and testify before the grand jury, the proceeding was continued, resulting in the grand jury having already heard the police officer’s testimony, thereby forcing the prosecutor to question the witness about the lineup procedure.

In light of the nearly four month break between the lineup and the grand jury presentation, the opponent had more than sufficient time to investigate the matter and ascertain the potential testimony from their witnesses.

Even though the court has found that the prosecutor did not act in good faith, the opponent still maintains that the man suffered no prejudice as a result of the improper legal instructions.

The court stated that whether or not the witness actually identified the man at the police lineup and only answered in the negative in the grand jury because he couldn’t be sure if his positive identification stemmed from his personal recollection of the man from the prior subject banking transactions or was the product of having subsequently viewed the man in the surveillance photographs, the proof, as presented by the prosecutor, failed to explain the consideration.

Based on records, the witness had clearly failed to identify the man at the lineup, yet they were now being directed by the prosecutor to disregard the evidence.

The court of appeals also noted and stated that they do not intend to suggest by their holding in the case that inadequate or incorrect legal instructions would never constitute grounds for dismissing an indictment for grand larceny as defective.

Consequently, the court found that the actions of the prosecutor, in specifically instructing the grand jury to disregard the exculpatory evidence of non-identification by the key witness, constituted a clearly defined impairment to the reliability of the grand jury proceeding, resulting in prejudice to the man and mandating a dismissal of the indictment. As a result, the man’s motion for an order dismissing the indictment is granted.

There are instances that people prefer to perform unlawful action just to obtain huge amount of easy money. Whenever you get involved of such crime and you need legal guidance with your case, you can ask the Queens County Grand Larceny Attorney or Queens County Petit Larceny Lawyer. You can also visit Stephen Bilkis and Associates office and seek suitable expert such as the Queens County Criminal Lawyers.

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