The defendant, Jermaine Gibson, has submitted an omnibus motion, dated January 18, 2023, seeking: a Bill of Particulars; several discovery-related orders; severance; inspection of the grand jury minutes and dismissal or reduction of the indictment; suppression of evidence; Sandoval relief; and leave to file further motions. The People's response, dated February 8, 2023, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

The defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to [*2]the requirements set forth in CPL § 200.50. The defendant's motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their certificate of compliance dated December 1, 2022. Otherwise, the defendant's motion is denied because the release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant's motion to reduce or dismiss the indictment. However, upon inspection of the grand jury minutes and the exhibit, this court found the evidence to be legally insufficient.

In general, defects in a grand jury presentation require dismissal where '"the integrity of the Grand Jury proceeding is impaired 'and prejudice to the defendant may result.'" (People v Huston, 88 NY2d 400, 402 [1996] [quoting CPL § 210.35[5]].) Here, this court concludes the failure of the People to provide a corroboration charge to the grand jury impaired the integrity of the grand jury proceeding and rendered the evidence before the grand jury legally insufficient. (See CPL § 210.35[5].)

Over the course of the grand jury presentation, Ryan Kandasammy was the only witness who described the conduct that gave rise to charges in this case. On May 16, 2022, Kandasammy had left a bar at about 3:30 a.m. and walked to a nearby store at the corner of 173rd Street and Jamaica Avenue to get something to eat. At that location he encountered two men, one of whom was wearing an orange sweater, the other a gray sweater. They spoke briefly. Kandasammy then crossed the street to another restaurant near the corner of 173rd Street and Jamaica Avenue. The two men followed him across the street. The man wearing the orange sweater then yoked Kandasammy from behind, dragged him toward the middle of the block where he took him to the ground. The other man hit him in the head and took his jewelry and wallet. The attack left Kandasammy with bruises on his head, bleeding from the lip and pain in his rib area. Following the robbery, Kandasammy took a cab home and reported the robbery to the police the next day. In response to a question posed by a juror, Kandasammy said neither of the men who robbed him were with him in the bar; he met them for the first time after he left the bar and walked across the street to the corner store at 173rd Street and Jamaica Avenue.^[FN1] At the end of his testimony, Kandasammy, in response to a question posed by the prosecutor, confirmed that he had learned the name of the "individual in the orange [sweater] to be Jermaine Gibson." During the presentation of the exhibit 1, a CD containing four video files of the robbery, Kandasamm identified himself and the two robbers, one of whom was wearing an orange sweater, the other a gray sweater. He did not, however, identify Gibson as wearing the orange sweater.

Detective Nicolas Crecca also testified before the grand jury and said he was working on May 16, 2022, and assigned to investigate a robbery at 173rd Street and Jamaica Avenue. He explained that he had received a complaint that an individual was robbed at that location and "we went out and investigated it." Those facts were the only information Detective Crecca [*3]provided about his investigation of the robbery itself. At the end of his testimony, the prosecutor asked Detective Crecca whether he arrested anyone in connection with the robbery. Detective Crecca said he arrested Jermaine Gibson on September 13, 2022. Following Gibson's arrest, Crecca said Gibson told him he just had a fight when Crecca asked him "about the incident". Crecca's testimony, along with Kandasammy's and the video surveillance of the robbery, was the only evidence before the grand jury, with the exception of the defendant's statement.

On a motion to dismiss an indictment pursuant to CPL § 210.20(1)(b), the inquiry of the reviewing court is limited to the legal sufficiency of the evidence. CPL § 190.65(1) provides that "a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction is absent." CPL § 70.10 defines legally sufficient evidence to mean "competent evidence which, if accepted as true would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent."

Throughout this evidence, all the grand jury knew was that two men, one wearing an orange sweater and the other a gray sweater, robbed Kandasammy. The grand jury was never presented with any evidence that Kandasammy, at any time following the robbery, or any other witness to the robbery identified Gibson as the robber or that Kandasammy or any other witness identified Gibson as the person on the video surveillance files to Crecca. The only link connecting the Gibson to the robbery, setting aside the fact of Gibson's arrest or Kandasammy's knowledge of Gibson's name and that he was the subject of the grand jury investigation, all of which are, of course, not evidence of Gibson's identity as the robber, was his statement to Crecca on September 13, 2022. Nor can it be readily inferred from the evidence presented to the grand jury that Kandasammy learned of the defendant's identity as the robber, as opposed to learning his name, as a result of seeing him on the street and informing the police or identifying Gibson as a result of a police identification procedure. The only evidence before the grand jury that placed the Gibson at the scene of the robbery was his statement. Gibson, however, never admitted to any involvement in the robbery.

Here, with respect to the defendant's statement, the People failed to provide a corroboration instruction to the grand jury as required by CPL § 60. 50 which provides that "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." The Court of Appeals stated in People v Calbud, 49 NY2d 389, 394-95 (1980) that "a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law." After establishing this lenient standard, the court nonetheless cautioned that the Grand Jury's integrity might well be impaired within the meaning of CPL §210.35(5) "[when] the District Attorney's instructions to the Grand Jury are so incomplete as to substantially undermine [the Grand Jury's] function." (Id.) In a case with no identification evidence, coupled with the People's failure to charge the grand jury with the corroboration instruction, it cannot be said the grand jury did not indict based upon the defendant's statements alone. (See People v Lincoln-Lynch, 77 Misc 3d 1224(A) [County Ct Saratoga County 2022]; People v Samuel, 71 Misc 3d 1203(A) [Sup Ct Queens County 2021]; People v Sanchez, 125 Misc 2d 394[Sup Ct, Kings County 1984].)

The defendant was clearly prejudiced because he was indicted despite the lack of legally [*4]sufficient evidence.

For all these reasons, the defendant's motion to dismiss the indictment is granted with leave to re-present to another grand jury. In light of this determination, this court need not address the defendant's remaining claims.

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States [*5]and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.