         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
369
KA 09-00403
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD J. WASHINGTON, III, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (MARK C. CURLEY OF
COUNSEL), 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 December 13, 2006. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree.

      It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Oneida County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him upon his plea of guilty of
murder in the second degree (Penal Law § 125.25 [1]). Before pleading
guilty, defendant moved to dismiss the indictment on the ground that
the integrity of the grand jury proceedings was impaired and defendant
was “possibly prejudiced” because the individual listed as the
foreperson of the grand jury was in fact the father or other close
relative of defendant’s former girlfriend, and both the former
girlfriend and defendant were previously parties to an order of
protection. We agree with defendant that County Court erred in
denying the motion without first conducting a hearing. We note at the
outset that, contrary to the People’s contention, the challenge by
defendant “is to the integrity of the grand jury proceeding . . ., and
such a challenge survives defendant’s guilty plea” (People v Gilmore,
12 AD3d 1155, 1155-1156; see generally People v Hansen, 95 NY2d 227,
230-231; People v Crumpler, 70 AD3d 1396, 1397, lv denied 14 NY3d
839).

     With respect to the merits of defendant’s contention, CPL 210.45
(5) provides that a court may deny a motion to dismiss the indictment
pursuant to CPL 210.20 without conducting a hearing if “(a) [t]he
moving papers do not allege any ground constituting legal basis for
the motion . . .; or (b) [t]he motion is based upon the existence or
occurrence of facts, and the moving papers do not contain sworn
allegations supporting all the essential facts; or (c) [a]n allegation
of fact essential to support the motion is conclusively refuted by
                                 -2-                           369
                                                         KA 09-00403

unquestionable documentary proof.” If the court does not deny the
motion pursuant to CPL 210.45 (5), it must either grant the motion
without conducting a hearing under circumstances specified in CPL
210.45 (4), or “it must conduct a hearing and make findings of fact
essential to the determination thereof” (CPL 210.45 [6]). Here, as
noted, the moving papers contained allegations that the integrity of
the grand jury proceedings was impaired and defendant was “possibly
prejudiced” based on the fact that the foreperson allegedly was the
father or other close relative of defendant’s former girlfriend and
the fact that defendant and his former girlfriend were parties to an
order of protection that had been issued. Allegations that a
specified grand juror was “incapable of performing his [or her] duties
because of bias or prejudice” provide a legal basis for a motion to
dismiss the indictment (CPL 190.20 [2] [b]; see People v Connolly, 63
AD3d 1703, 1705; People v Revette, 48 AD3d 886, 886-887). Moreover,
the moving papers contained the requisite sworn allegations of the
essential facts asserted in support of the motion (see CPL 210.45 [5]
[b]), and the People did not conclusively refute defendant’s
allegations with “unquestionable documentary proof” (CPL 210.45 [5]
[c]). We therefore hold the case, reserve decision, and remit the
matter to County Court to conduct a hearing on defendant’s motion (see
CPL 210.45 [6]; see generally People v White, 72 AD2d 913, 914).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
