Murder Indictment Dismissed, Grand Jury Impaired


The case of People v. Morillo, 2020 N.Y. Slip Op 20311 (Sup. Ct. 2020) is an example of why a New York Criminal Defense Attorney can and should challenge the Grand Jury Indictment as, in this case, Murder and Manslaughter charges were dismissed - dismissal of the indictment is specifically compelled by statute when the integrity of the Grand Jury proceeding is impaired and prejudice to the defendant may result. See, CPL § 210.35(5). The accused should hire a competent New York Criminal Defense Attorney throughout all stages of the proceeding, including before and after a Grand Jury Indictment is rendered.


What happened here is that the New York Police Officer/Detective testified as to his interpretation of, among other things, the depictions in a video. In reviewing the Grand Jury testimony, the Court evaluates and determines that the jurors improperly based the indictment upon the opinions, evaluations and hearsay of a law enforcement officer that seemed to simply watch and regurgitate his thoughts on what the video depicted.


"A grand jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution." People v. Lancaster, 69 NY2d 20, 30 (1986). Here, "The testimony about what the video allegedly depicted, was offered to support the People's position that the defendant committed the crimes of Murder in the Second Degree, Manslaughter in the First Degree and two counts of Criminal Possession of a Weapon in the Second Degree." People v. Morillo, 2020 N.Y. Slip Op 20311 (Sup. Ct. 2020). Instead of still pictures and testimony of persons depicted in the video, the prosecutor simply placed the law enforcement officer on the stand to persuade the jurors to return a true bill.


"A grand jury indictment is authorized when (a) the evidence before the grand jury was legally sufficient to establish that such person committed an offense and (b) competent and admissible evidence before the grand jury provides reasonable cause to believe that such person committed such offense. " People v. Morillo, 2020 N.Y. Slip Op 20311 (Sup. Ct. 2020) (citing CPL 190.65(1)). The Court of Appeals has found that if the Grand Jury is improperly influenced, the integrity of Grand Jury proceedings is impaired. People v. Morillo (citing People v. Huston, 88 NY2d 400 (1996)). The Court stated that the New York Legislature "requires that an indictment be dismissed where the Grand Jury proceeding is defective. Id. (citing CPL § 210.20(c)).


The Supreme Court, Justice Yearwood, in People v. Morillo, 2020 N.Y. Slip Op 20311 (Sup. Ct. 2020) notes the following law:

"As a general principle of common-law evidence, lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts. It is left to the jury to draw the appropriate inferences arising from the facts." People v. Russell, 165 AD2d 327 (1991). The court, however, may allow lay opinion testimony in its discretion to aid the jury's identification process when there is "some basis for concluding that the witnesses were more likely to correctly identify the defendant from the videos than was the jury." People v. Boyd, 151 AD3d 641 (2017). Testimony regarding the identity of the defendant depicted on video surveillance may properly be admitted when the evidence is based on the witness's familiarity with the defendant from prior occasions. People v. Sanchez, 95 AD3d 241 (2012) (emphasis added). "Such testimony is most commonly allowed in cases where the defendant has changed his or her appearance since being photographed or taped, and the witness knew the defendant before that change of appearance." People v. Coleman, 78 AD3d 457 (2010). If the court improperly admits such identification testimony from a non-witness, that evidence may be found to be harmless when there is "no reasonable possibility that the defendant and the man of identical dress and appearance depicted in the videotape were two different people." People v. Calderon, 171 AD3d 422 (2019).

When it comes to indictments, the former Chief Judge of the State of New York once said that a New York Grand Jury could indict a Ham Sandwich. In throwing out the indictment, the Court here notes that "[t]he Grand Jurors were denied the opportunity to view, evaluate, and decide for themselves what the video surveillance evidence showed and what if anything it proved [...instead...] only heard the detective's opinions as to what he saw on this video and what he thought it demonstrated which, is completely irrelevant." The danger of this is that everything is hearsay, the Court noting that "the detective was made the fact finder and co-opted the job of the Grand Jury."


The Murder Indictment is dismissed. In sum, "The court finds that the Grand Jury proceedings in this case were seriously impaired, and that the defendant was palpably prejudiced." However, this does not end the case. It means that the People of the State of New York are able to represent the Murder Charges to the Grand Jury.


The case is People v. Morillo, 2020 N.Y. Slip Op 20311 (Sup. Ct. 2020), Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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