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Defendant Claims Insufficient Evidence for an Indictment


A man moved for an examination of the stenographic minutes from a grand jury proceeding for the purpose of determining whether the evidence was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the grand jury were sufficient. He also seeks dismissal of the charges on the grounds of insufficiency of the evidence or for other defects in the proceedings.

The man stands charged with driving while intoxicated (DWI), a class E felony. Based on records, the felony status of the crime is based on a predicate conviction for driving a motor vehicle with in the violation of vehicle and traffic law, an unclassified misdemeanor.

The incident occurred one evening where a state officer’s attention was drawn to the man’s automobile because it was moving slowly. He estimated that the driver of the vehicle was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. The officer followed the vehicle and testified that the man was going about 20 miles per hour in the 30-mile per hour zone. At some point he verified the speed of the vehicle using radar. A New York Criminal Lawyer said the man consistently maintained the same speed up hill and downhill, including a steep hill, until he pulled over at the direction of the officer. He also testified that the man was driving on the right-hand side of the road. The man further testified that he pulled him over solely because of his driving. He also testified in saying that driving ten miles per hour below the limit is considered impeding traffic. The district attorney however did not reprimand the grand jury on the witness in advising on the law.

The officer further testified as to certain field sobriety tests conducted, his observations of the man’s condition, the odor of an alcoholic beverage he detected from the man, the man’s refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The officer testified that in his opinion, the man was intoxicated.

Consequently, the grand jury raised a number of questions. The district attorney then advised that in the case, there was no video evidence. He also advised that the officer cannot pull someone over without any reason. Based on records, the only possible charge, entitled minimum speed regulations, provides under subdivision was that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

On the stop issue, the court notes that the conduct as described by the officer, in driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation.

A Suffolk County Criminal Lawyer said the district attorney offered into evidence a certificate of conviction from the justice court. The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. Although, it is unclear whether he meant to say DWAI, or meant DWI as a misdemeanor. Yet, it is clear that the grand juror was asking whether they could consider any lesser charge.

Based on records, the criminal procedure law provides that a grand jury proceeding is defective when the integrity thereof is impaired and prejudice to the opponent. In addition, the exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. The legal test is very precise and very high.

The court explained that since dismissal of an indictment is an extraordinary remedy, it should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury. Flaws, errors or even skewing need not require a dismissal. The court further states that not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. The submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the accusation.

The court also explained that the instruction for more than twelve grand jurors must decide whether the evidence was insufficient to support the DWI charge before they could consider the DWAI charge was improper and assumed the grand jury’s function.

Similarly, it is simply inaccurate that the grand jury must have decided to no bill the DWI charge before it could have considered DWAI. The applicable to trial juries, is not applicable in the grand jury. Likewise, it is inaccurate that more than twelve must so decide. The DWAI is a lesser included offense and a reasonable view of the evidence clearly could support a finding of the offense.

Additionally, the grand jury also had the right to consider DWI as a misdemeanor, as it is a lesser charge of DWI as a felony. Since the only evidence establishing the predicate offense was the certificate of conviction, the jury could have chosen to reject the said evidence, and if it found that the opponent had been operating a motor vehicle while intoxicated, he must charge only for the misdemeanor. The latter point brings up for consideration and the manner in which the certificate of conviction was introduced in evidence to establish the predicate.

In the trial, the evidence presented was sufficient to establish that the opponent did have a predicate conviction. It bears reminding, however, that like any evidence before it, the grand jury may accept or reject it. The certificate of conviction is not evidence that establishes the predicate as a matter of law.

Based on records, there is no question raised but the court found that a certificate for a named individual with a particular date of birth is sufficient to establish that the target of the investigation is the same person as identified in the predicate. It is still up to the grand jury to accept or reject the evidence. Moreover, the manner in which the evidence of the predicate was presented to the grand jury suggested the certificate as in fact relating to the opponent. While not making a finding of fact that the prosecutor did so in the case, prosecutors generally should be reminded that in presenting such certificates, they must not offer them as in fact relating to the target of the investigation, as such amounts to testifying before the grand jury.

Therefore, it appears plain to the court that the restriction imposed by the district attorney on the jury, that it must first decide the insufficiency of the evidence as to DWI before it could consider DWAI, was error that prevented the grand jury from evaluating the case as they had a right to do. It requires more than twelve to decide that it compounded the error, as well as being error itself.

Given the errors, the grand jury was denied its right to evaluate and consider all the relevant and reasonable charges and actions available to it. As a result, the indictment is dismissed.

The presence of alcohol in the human system affects the person’s consciousness and coherence. Driving while under the influence of alcohol can cause accident. If you are arrested for such case, you can choose from the Bronx County DUI Lawyer or Bronx County DWI Defense Attorneys. For your more serious offense whether it involves sex crimes, drug possession or theft, you prefer to ask for the legal representation of the Bronx County Criminal Lawyer by calling or visiting Stephen Bilkis and Associates office.

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