         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
64
KA 11-00486
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENT D. SPRATLEY, DEFENDANT-APPELLANT.


CHRISTOPHER JUDE PELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered November 17, 2010. The appeal was held by this
Court by order entered June 8, 2012, decision was reserved and the
matter was remitted to Oneida County Court for further proceedings (96
AD3d 1420). The proceedings were held and completed (Barry M.
Donalty, J.).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: We previously held this case, reserved decision and
remitted the matter to County Court to rule on defendant’s renewed
pretrial motion to dismiss the indictment “based on allegedly
prejudicial conduct during the grand jury proceeding,” i.e., the
presentation of testimony concerning handguns found in a bag in the
trunk of defendant’s vehicle (People v Spratley, 96 AD3d 1420, 1421).
We determined in our prior decision that defendant’s remaining
contentions on the appeal from the judgment of conviction after a
nonjury trial lacked merit (id. at 1420-1421). Upon remittal, the
court denied the motion, and we now affirm.

     Defendant contended in support of his renewed motion to dismiss
the indictment that certain testimony of a police investigator
regarding the handguns was not relevant and was prejudicial. A court
may, upon the motion of a defendant, dismiss an indictment on the
ground that the grand jury proceeding was “defective” (CPL 210.20 [1]
[c]). A grand jury proceeding is defective when “the integrity
thereof is impaired and prejudice to the defendant may result” (CPL
210.35 [5]; see People v Huston, 88 NY2d 400, 409). There “must be an
articulable ‘likelihood of’ or at least ‘potential for’ prejudice”
(People v Adessa, 89 NY2d 677, 686; see Huston, 88 NY2d at 409).
Dismissal of an indictment is “limited to those instances where
prosecutorial wrongdoing, fraudulent conduct or errors potentially
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                                                         KA 11-00486

prejudice the ultimate decision reached by the [g]rand [j]ury”
(Huston, 88 NY2d at 409).

     Here, contrary to defendant’s contention, there was no error in
the presentation of the testimony regarding the handguns during the
grand jury proceeding. The victim testified before the grand jury
that defendant pulled a handgun from his waistband, and the victim
then heard a “bang” and realized he had been shot. The grand jury
testimony that handguns were found in a bag in defendant’s abandoned
vehicle two hours later was thus relevant. In any event, even if the
testimony was inadmissible, we agree with the court that there was no
reason to dismiss the indictment. Indeed, “ ‘not every . . .
elicitation of inadmissible testimony . . . renders an indictment
defective. Typically, the submission of some inadmissible evidence
will be deemed fatal only when the remaining evidence is insufficient
to sustain the indictment’ ” (People v Jeffery, 70 AD3d 1512, 1513,
quoting Huston, 88 NY2d at 409; see People v Peck, 96 AD3d 1468,
1469), which is not the case here.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
