Judge Asked to Revisit Prosecutorial Misconduct in Grand Jury Proceedings

Nassau Prosecutors Ask Judge to Revisit Allegations in Opinion
The New York Law Journal by Andrew Keshner  -  September 2, 2011

The Nassau County District Attorney's Office has decried what it characterizes as a judge's unfounded accusation in a written opinion that prosecutors had improperly manipulated a grand jury, allegations that a prosecutor said would "besmirch" his reputation.  Assistant District Attorney Michael Bushwack on Wednesday moved to reargue an Aug. 23 decision by Acting Supreme Court Justice George Peck in People v. Draper, Indictment No. 894N-11, dismissing two counts of criminally negligent homicide and one count of third-degree criminally negligent assault against upstate trucker Ryan Draper.  "[T]here is absolutely no evidence of prosecutorial misconduct or improper influence on the Grand Jury," District Attorney Kathleen Rice said in a statement yesterday. "If Judge Peck examined the record closely and allowed prosecutors a fair hearing, he would know that these outstanding ADAs did nothing wrong. Instead, he admittedly based his conclusions on assumptions and speculation, with reckless disregard for the facts. We have moved to reargue to ensure that Judge Peck appreciates the law and the propriety of the prosecutors' conduct throughout this case. If the motion is denied, we will appeal."  Mr. Draper was charged in connection with an April 2010 multi-car collision at a Bethpage intersection that resulted in the deaths of Barbara Ryan, 44, and her 11-year-old daughter, Joanna.

Justice Peck held that the prosecution had presented insufficient evidence to demonstrate that the incident was anything other than an accident. But he also said that he was dismissing the negligence counts "for the reason of improper prosecutorial conduct and unfair dealing which usurped the power of the Grand Jury."  On the morning of May 19, the grand jury declined to indict Mr. Draper for homicide but charged him with criminally negligent assault, reckless driving and two traffic infractions. But the judge complained that Mr. Bushwack returned and initiated a colloquy with the grand jury in the afternoon although it had not asked for his legal advice.  After Mr. Bushwack re-instructed the grand jury on the law, it reversed its earlier decision by indicting Mr. Draper for homicide.  "There might be an appropriate explanation why the prosecutors took the action they did," the judge said. "However, on the state of this record, this court can only conclude that it is more likely than not that the prosecutors were dissatisfied with the recorded action of [the grand jury's] morning session and thereafter in the afternoon session exercised improper influence which undermined the integrity of the Grand Jury."  Mr. Bushwack said in his motion that he had been merely trying to determine how many grand jurors had voted to dismiss the charges because, by law, a grand jury cannot dismiss a charge without the agreement of 12 members.  "The lack of any evidence that there is impropriety is striking," he wrote. "This court undertook no investigation and had no hearing before making its damaging finding. The Court's decision, which mentions me by name, will henceforth besmirch my reputation based solely upon speculation about matters not appearing in the record of this proceedings."  Mr. Bushwack recounted that during the morning deliberations he had gone to handle a case in another building, leaving the grand jury in the care of Vehicular Crimes Bureau Chief Maureen McCormick, his supervisor. At lunch, Mr. Bushwack said that he had run into Ms. McCormick and she told him about his result.  However, Ms. McCormick said that the foreperson of the grand jury had not been asked if there were 12 votes for dismissal. Ms. McCormick said in an affirmation that she does not usually present cases to the grand jury and that she had simply forgotten to ask.  Mr. Bushwack recommended that the question be posed in the afternoon, and she agreed. He stressed that he never communicated with any jurors between the time he left to deal with another case to his grand jury appearance after lunch.  "Just as there is nothing improper about confirming that a petit jury has followed a court's instructions, for example, by polling jurors to confirm that their verdict is unanimous, there is nothing improper about confirming that a Grand Jury has followed a prosecutor's instructions to ensure that the proceedings are proper and not subject to dismissal pursuant to CPL §210.20(c)," he wrote, referring to a provision authorizing an indictment's dismissal due to a defective grand jury proceeding.

Question of Evidence

Mr. Bushwack also argued that there was ample evidence to let the criminal negligence charges go forward.  According to statements made to police that were later cited by prosecutors, Mr. Draper took his eyes off the road momentarily to check his mirrors and reach for a lighter. He never saw a light at the intersection change to red and saw Ms. Ryan's car too late.  Mr. Draper was allegedly traveling between 47 and 50 m.p.h. at the time of the incident. The posted speed limit is 40 m.p.h.  There were no drugs or alcohol involved in the case; nor was there bad weather or heavy construction at the time.  Mr. Draper, of Lowville, has pleaded not guilty and is free on bail.  Justice Peck concluded that prosecutors had presented insufficient evidence to demonstrate Mr. Draper's "gross deviation" from what a reasonable person would have done, noting "[n]ot all conduct which evinces a lack of care or prudence amounts to criminal conduct."  Viewing the evidence "in its best light," Mr. Draper could have been speeding "to a slight degree" before the traffic light turned red, Justice Peck wrote.  Prosecutors brought in an accident reconstruction expert, Ronald Baade, who Justice Peck said was there "presumably to testify among things as to his opinion as to the defendant's speed at impact with the victim's car."  But Justice Peck said Mr. Baade was "inexplicably" never asked for an opinion on Mr. Draper's speed.  "In essence there was no competent sworn expert testimony of the witness concerning his opinion as to the defendant's speed at impact," Justice Peck wrote, saying Mr. Baade's testimony had to be discounted.  Mr. Bushwack argued that Mr. Baade had indeed stated an opinion although he couched it in other words, by stating that he had reached his "conclusion" using "industry standards" and "scientifically acceptable methods."  Joseph A. LoPiccolo of Hession, Bekoff & Lo Piccolo in Garden City represents Mr. Draper.  In an interview, he said Justice Peck's dismissal of the case's top charges was a "verification of the fact that sometimes an accident is just an accident. There's not criminal culpability to every accident."  Mr. LoPiccolo called the district attorney's decision to file the motion to reargue "essentially a stall tactic" that allows more time for the office to determine whether to appeal to the Appellate Division, Second Department.  "It's a unique decision here because the judge didn't just dismiss on the law, he dismissed on the grounds of prosecutorial misconduct to the grand jury," he said.  Andrew Keshner can be contacted at akeshner@alm.com.