PEOPLE v. COREY ARNEAUD

Friday, May 25, 2001

Supreme Court

Kings County

CRIMINAL TERM, PART 39

Justice Greenberg

PEOPLE v. COREY ARNEAUD ” In a written decision issued by this court, Indictment No.7322/2000 was dismissed due to a combination of the antagonistic character of the cross-examination of the defendant by the assistant district attorney presenting the case to the Grand Jury and the inartful composition of his questions. These improprieties so poisoned the atmosphere of the presentation, that the integrity of the Grand Jury was impaired. Given leave to re-present the case to a different Grand Jury the prosecutor chose to do so. The within indictment No. 1903/2001 resulted, charging the defendant with having committed two robberies: one on August 24th, and another on August 25th, 2000. Upon inspection of the minutes of this second presentation, I find that once again the integrity of the Grand Jury has been impaired, and the resulting indictment must be dismissed.

In his testimony before the Grand Jury, the defendant denied participating in either of the robberies, claiming separate alibis. He swore that he was home, sleeping, at the time of the August 25th occurrence, and that he was with a friend, Joseph Crianza on August 24th at the time that the first complainant was robbed. At the conclusion of the defendant’s testimony the assistant district attorney properly inquired whether the jurors wanted to hear Mr. Crianza. They voted to have him appear and Mr. Crianza was then called by the prosecutor to the stand to testify. He was not asked to waive immunity.

Although the prosecutor examined Mr. Crianza about events that may have occurred subsequent to the time that the robbery of August 24th is alleged to have taken place, he carefully avoided posing any questions concerning the defendant’s whereabouts at the time of the crime. He did not invite the witness to make a statement concerning the alibi raised by the defendant or to offer anything relevant to his being in the company of the defendant when the crime was said to have been taking place. Without the prosecutor eliciting anything in his examination of Mr. Crianza concerning the alibi alleged by the defendant, and in the absence of his affording him an opportunity to volunteer testimony relevant to the only reason he was called to the stand, Mr. Crianza’s appearance was a sham. Virtually every question that was put to Mr. Crianza appeared to be designed solely to illustrate that the defendant had a friend who was a bad person, not worthy of belief. Such impeachment “evidence,” even brought forth with as heavy a hand as is reflected in the record herein, might have been justified, had the witness testified to anything that could have been considered remotely harmful to the People’s prima facie case. However, under the circumstances herein, it amounted to misfeasance, unworthy of a public officer.

Immediately after completing his questioning of Mr.Crianza, the assistant district attorney stated to the Grand Jury: “Ladies and gentlemen, by a vote of 12 votes you got to hear from this witness. I have no further questions for this witness.” He then asked whether the jurors themselves had any questions for Mr. Crianza. Not surprisingly, they had none, and returned a true bill.

When asked to justify the procedure he used in putting Mr.Crianza before the jury, the presenting prosecutor defended his actions by saying that if the Grand Jury thought that the witness possessed information relevant to an alibi for the defendant, and called for him to appear before them, the prosecution completely fulfilled any duty it had in the circumstances by merely accomplishing Mr. Crianza’s presence before the Grand Jury. Further than that he maintained, since it was the Grand Jury and not the prosecution who called for the witness, it was, consequently, the Grand Jury, and not the prosecutor who was obliged to ask the questions. Why, he asked, should the District Attorney aid in presenting a defense for the accused? This court absolutely, categorically, rejects that position. If the assistant district attorney’s stated view accurately reflects his office’s policy in this area, that view should be re-evaluated immediately. Should it be that the procedure employed herein reflects only the attitude of the individual assistant involved, the court calls upon the District Attorney to sensitize his assistants to their true mission.

At a Grand Jury proceeding, the prosecutor, of necessity, performs the dual role of advocate and public officer; charged with the duty not only to secure indictments but also to see that justice is done (People v. Huston, 88 NY2d 400, 406, citing People v. Lancaster, 69 NY2d at 26; see also, People v. Pelchat, 62 NY2d at 104). The “duties and powers bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion” ( People v. Di Falco, 44 NY2d at 487, cited by People v. Huston, supra). True, the Grand Jury got to “hear” from Mr. Crianza, but the prosecutor did not see that justice was done.

C.P.L. 190.50(6) provides:

A defendant or person against whom a criminal charge is being or is about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called pursuant to subdivision three.

The prosecutor’s illusory compliance with C.P.L. 190.50(6) was a woefully inadequate gesture. Furthermore, and worse, in doing so his actions appear to have been specifically designed to thwart the Grand Jury from hearing anything favorable to the defendant. While he ignored the issue of the defendant’s whereabouts during the alleged robbery, the assistant district attorney focused on Mr. Crianza’s recall of details of events unfolding after the crime. He dwelled on statements made by Mr. Crianza in the prior Grand Jury presentation which may have been inconsistent with the witness’ present testimony. In doing so, the prosecutor was obviously seeking to impress upon the jurors that neither the defendant, nor the witness who might be able to support his alibi, were worthy of belief. The prosecutor’s own disbelief in the defendant’s testimony is clearly illustrated by this totally unnecessary part of the cross-examination of the defendant:

Q. Where you live is not to far from East 3rd and Ditmas Avenue, is it not?

A. No, its not.

Q. In fact you live right off East 3rd and Ditmas Avenue, is that true?

A. Yes, it is.

Q. Isn’t true that cab drivers park their cabs at night in that area, isn’t that true?

A. I have no idea where they park their cars.

Q. Isn’t it true that the cab drivers park their cars in that neighborhood at the end of their shift, correct?

A. I don’t know where they park their cars.

Q. Isn’t it true when cab drivers end their shift they have money on them, correct?

A. How am I suppose to know if they have money or not?

Q. Isn’t it true that because cab drivers park their cars in that neighborhood and have money on them that you and your friends wait for the cab drivers and rob the cab drivers, isn’t that true?

A. No, it is not.

Q. Isn’t true that on August 24th, you stood face to face with Mr. Diallo and you pointed a gun at him and demanded his money, correct?