Conviction After Trial Does Not Cure Defective Grand Jury Instructions

The provision in CPL § 210.30(6) authorizing denial of appellate review of a motion to dismiss an indictment for insufficiency of grand jury minutes “from an ensuing judgment of conviction based upon legally sufficient trial evidence” does not preclude appellate review of defective grand jury procedures. Thus, in People v Calkins (2011 NY Slip Op 05314 [4th Dept 6/17/11]) the Appellate Division Fourth Department held that deficient instructions to the grand jury required reversal despite a finding that the defendant had been convicted on legally sufficient proof.

In Calkins the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person with respect to the charge of assault in the second degree, the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree. The grand jury voted not to indict defendant for assault but did indict him for criminal mischief.

The Court concluded that the

defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person (see People v Huston, 88 NY2d 400, 409). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises (see § 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges...