        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

277
KA 12-02083
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHRISTOPHER CONKLIN, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Daniel
J. Doyle, J.), dated November 1, 2012. The order granted that part of
defendant’s omnibus motion seeking to dismiss the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, that part of defendant’s omnibus
motion seeking to dismiss the indictment is denied, the indictment is
reinstated and the matter is remitted to Supreme Court, Monroe County,
for further proceedings on the indictment.

     Memorandum: On appeal from an order that granted that part of
defendant’s omnibus motion seeking to dismiss the indictment pursuant
to CPL 210.35 (5), the People contend that Supreme Court erred in
determining that the integrity of the grand jury proceedings had been
compromised due to prosecutorial misconduct. We agree with the
People. “ ‘[D]ismissal of an indictment under CPL 210.35 (5) must
meet a high test and is limited to instances of prosecutorial
misconduct, fraudulent conduct or errors which potentially prejudice
the ultimate decision reached by the [g]rand [j]ury’ ” (People v
Sheltray, 244 AD2d 854, 855, lv denied 91 NY2d 897; see People v
Huston, 88 NY2d 400, 409). As the Court of Appeals has stated, “not
every improper comment, elicitation of inadmissible testimony,
impermissible question or mere mistake renders an indictment
defective” (Huston, 88 NY2d at 409; see People v Butcher, 11 AD3d 956,
lv denied 3 NY3d 755).

     Here, the court stated in its written decision that the grand
jury proceeding was defective due to the prosecutor’s cross-
examination of defendant and “the insufficiency of [the prosecutor’s]
curative instruction.” Although the court did not specify the basis
for its conclusion that the cross-examination was defective, it
appears that the court was concerned that the prosecutor asked
                                 -2-                           277
                                                         KA 12-02083

defendant whether he was aware that the complainant made a recording
of the incident between them that led to the criminal charges. In
response, defendant testified that, yes, he had “been told” that there
was a recording, whereupon the prosecutor asked whether he was still
willing to testify that he did not raise his voice or become upset
during the incident. Defendant responded, “I didn’t really become
upset. No.” No evidence of a recording was presented to the grand
jury, and the complainant, who had testified before defendant, had not
been asked whether she made a recording.

     We conclude that, in the absence of any indication in the record
that the prosecutor lacked a good faith basis to ask defendant whether
he was aware that the complainant had recorded the incident, the court
erred in determining that the prosecutor engaged in misconduct during
his cross-examination that warrants dismissal of the indictment.
Indeed, given that defendant testified that he had been told that
there was a recording, it appears that the prosecutor in fact had a
good faith basis to ask the question. In any event, we do not
perceive how defendant could have been prejudiced by the prosecutor’s
cross-examination. As noted, when asked whether he was aware that
there was a recording, defendant stated that he would adhere to his
testimony that he did not raise his voice and did not become upset
during the incident. Thus, the prosecutor’s apparent attempt at
impeachment not did succeed. If anything, the prosecutor’s reference
to the recording and the failure of the prosecutor to present evidence
of such a recording worked to defendant’s benefit. We also note that
the complainant’s testimony was legally sufficient to establish that
defendant committed the charged crime even if he did not raise his
voice or become upset during the incident.

     We further conclude that the prosecutor did not engage in
misconduct when, in response to questions whether the complainant made
a recording, he instructed the grand jury members that he did not have
any further evidence and that they should make their “decision based
on the testimony you heard in the grand jury from the witnesses.”
When a grand jury member then asked, “Does that mean there is [no
recording],” the prosecutor responded, “You can certainly consider the
testimony that you heard. That’s the best answer I can give you. And
nothing that you didn’t hear.” Even assuming, arguendo, that
defendant is correct that the prosecutor should have instructed the
grand jury members that they could re-call the complainant to ask her
whether a recording existed, we conclude that the prosecutor’s failure
to do so was not fraudulent in nature or so egregious as to impair the
integrity of the proceeding. We therefore reverse the order, deny
that part of defendant’s omnibus motion seeking to dismiss the
indictment and reinstate the indictment.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
