People v. Encarnacion

OPINION OF THE COURT

Pursuant to CPL 330.30 (1), defendant Ernesto Encarnación moves for an order setting aside the verdict against him^[1] arguing that evidence at trial was insufficient to support his conviction for assault in the second degree. In addition, defendant protests improper use of grand jury minutes by the prosecutor who allegedly used them in a manner violative of CPL 160.50. Defendant focuses upon the prosecution’s revealing the complaining witness’ transcribed grand jury testimony in a related case,^[2] which allegedly violated the automatic seal imposed when a case is dismissed in favor of an accused.

Background

On July 1, 2009 defendant and another individual allegedly hit Anastacio Matías using metal chairs, injuring Matías’ head and arms. While the other party was arrested at the scene, the case against him was dismissed when the grand jury failed to return a true bill. Notwithstanding, on September 6, 2009, the instant defendant was arrested for inflicting the same injury. Before trial, the parties disputed release of evidence involving the other party with defendant arguing that the prosecution should not have access to sealed grand jury minutes without an unsealing order. Consequently, the court ordered the prosecution to turn over to defendant evidence from the prior case, including the grand jury testimony. That order covered the questionable statement from the victim, which became relevant after the defense attempted to place Matías’ credibility into issue for allegedly failing to tell arresting officers, at the scene or at the hospital, that anyone other than the original defendant was involved in the attack.

Movant’s Position

Concerning sufficiency of the evidence, defendant says the evidence at trial fails to show that Encarnación (rather than the other party) inflicted the injuries, thereby indicating that the prosecution failed to prove the “physical injury” element^[3] of assault in the second degree herein (see Penal Law § 120.05).

(see generally People v Cruz, 1 Misc 3d 908 [A], 2004 NY Slip Op 50004 [U] [Sup Ct, Bronx County 2004]).^[4]

Legal Discussion

At any time after rendition of a guilty verdict and before sentence is imposed, a court is empowered, upon defendant’s motion, to set aside the verdict (or any part thereof) upon any ground appearing in the record which, if raised on appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law (see CPL 330.30 [1]). In this case, defendant failed to show any ground requiring reversal or modification of the guilty verdict.

A jury convicted defendant of assault in the second degree. The penal statute, as applicable here, provides that a person is guilty of assault in the second degree when “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person” (see Penal Law § 120.05 [1]).

In deciding whether to vacate the verdict, the court finds that the prosecution presented the jury with sufficient evidence for a trier of fact to rationally find that each element of the crime was proved beyond a reasonable doubt. Unlike an appeals court which, on appeal from a judgment of conviction, is empowered to reverse upon the ground that the verdict is against the weight of the evidence, a trial court may set aside a verdict pursuant to CPL 330.30 only in instances where the evidence is legally insufficient to support the verdict (see People v Brown, 141 AD2d 657 [2d Dept 1988]). Here, the court finds the evidence legally sufficient (s ee generally People v Rodriguez, 187 AD2d 401 [1st Dept 1992] [use of a chair is assault in the second degree]).

Likewise, the court finds defendant lacks standing under CPL 160.50 to object to use of sealed records of a third party. The prosecutor used only evidence obtained during an ongoing investigation and provided it to defendant. Because defendant had full access to the grand jury material, no prejudice or disadvantage arose from the District Attorney’s use of the complainant’s statement (see generally Jencks v United States, 353 US 657 [1957]). Further, the prosecutor was under the court’s direction during a Wade/Dunaway hearing to provide the grand jury material to defendant and such material was provided (see Mar. 29, 2010 tr at 8-11; see also CPL 240.45).

The court finds no violation of grand jury secrecy.^[5] Defendant received the witness’ transcribed testimony by court direction before the testimony was used (see CPL 240.44). Further, no secrecy violation exists for a witness who merely acknowledges his own testimony before an earlier grand jury (see generally Note, Discovery by a Criminal Defendant of His Own Grand-jury Testimony, 68 Colum L Rev 311 , 313 [1968] [best reason for grand jury secrecy is to assure witness can testify without fear of reprisal]). Likewise, defendant is not disadvantaged by the prosecutor’s use of the grand jury testimony to rehabilitate his witness because defendant already possessed the transcript by court direction.^[6] Finally, defendant lacks standing to raise the protection of CPL 160.50 here (see generally Matter of Central Screening Comm. of Appellate Div., First Dept., 28 Misc 3d 726 [Sup Ct, Bronx County 2010]). Use of the testimony, even if a violation of CPL 160.50, does not invalidate the instant conviction. Any disclosure was of such a nature that reversal is not required even if a technical violation is found (see generally People v Chi Lau, 171 AD2d 581 [1st Dept 1991]). Further, justice required access to the transcript under these circumstances.