SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART H60 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE PEOPLE OF THE STATE OF NEW

YORK,

-against-

Indictment No. 01822/2012

RICHARD HASTE, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

MEMORANDUM

ROBERT T. JOHNSON District Attorney Bronx County 198 East 161st Street Bronx, New York 10451 (718) 838-7053 JOSEPH N. FERDENZI STANLEY R. KAPLAN DONALD LEVIN Assistant District Attorneys Of Counsel
MAY 13, 2013

MEMORANDUM Defendants fellow officers made communications to defendant and other members of his SNEU team that they had observed Ramarley Graham with a gun, and they testified in the Grand Jury that they communicated those observations to defendant. Defendant, in turn, testified that, based upon those transmissions, he believed that Ramarley Graham had a gun all the while he pursued him and at the very moment he shot him. As it turned out, however, no gun was ever recovered from Ramarley Graham, nor was one recovered during a subsequent search of the premises and the adjacent areas. Accordingly, the danger existed that, had the Grand Jury found that the officers who made the erroneous communications to be incredible, there would be an adverse spillover effect on defendant because he relied on misinformation, and that the Grand Jury might find him to be unjustified on this basis alone. Hence, the following supplemental instructions were given by the prosecutor in an effort to prevent such prejudice to defendant. The prosecutor instructed, What controls here is not the reasonableness of the belief of other police officers or their communication to Police Officer Haste (MT17). This instruction was followed by, What controls here in the issue of justification is the reasonableness of Police Officer Hastes conduct at the time of the shooting that controls the issue in this case (MT17). This instruction was designed to apprise the Grand Jury that the reasonableness of the beliefs and the reasonableness of the consequent communications of these other officers to defendant were not the controlling factor. The prosecutor deliberately used the word control, which entails directing a result. The prosecutor could correctly instruct that whether communications from other officers were reasonable did not control or decide the issue of whether defendants own beliefs were reasonable and whether defendants conduct was justified. The meaning of this instruction becomes even more self-evident when a further instruction was given in response to a Grand Jurors question: It is not the reasonableness of the beliefs of other police officers that was communicated to Police Officer Haste that controls the issue of justification. It is the reasonableness of Police Officer Hastes conduct at the time of the shooting. That is the issue controls the issue of justification. (MT27)

This rephrasing of the instruction clearly established for the Grand Jury that the reasonableness standard applied to both the reasonableness of the belief of another officer and the reasonableness of the content of the communication of another officer to defendant. That this rephrasing proves that reasonableness modifies both clauses of the initial instruction is consistent 1

with ordinary grammatical rules. Regarding grammatical structure, the Ninth Circuit observed in Washington Educ. Assn v. Natl Right to Work Legal Def. Fund, 187 F. Appx 681, 682 (9th Cir. 2006), Under generally accepted rules of syntax, an initial modifier will tend to govern all elements in the series unless it is repeated for each element. The American Heritage Book of English Usage chapter 2, 10 (Houghton Mifflin, 1996),http://www.bartleby.com/64/2.html (last visited May 18, 2006); see United States Fid. & Guar. Co. v. Fireman's Fund Ins. Co., 896 F.2d 200, 203 (6th Cir.1990) (holding that the reasonable construction of the phrase negligent act, error, or omission is that the policy covers only negligent and not intentional conduct); Ward Gen. Ins. Servs., Inc. v. Employers Fire Ins. Co., 114 Cal.App.4th 548, 554, 7 Cal.Rptr.3d 844 (Cal.Ct.App.2003) (stating that [m]ost readers expect the first adjective in a series of nouns or phrases to modify each noun or phrase in the following series unless another adjective appears); Lewis v. Jackson Energy Coop. Corp., 189 S.W.3d 87, 92 (Ky. 2005) (stating that it is widely accepted that an adjective at the beginning of a conjunctive phrase applies equally to each object within the phrase. In other words, the first adjective in a series of nouns or phrases modifies each noun or phrase in the following series unless another adjective appears.). Concomitantly, it is evident that reasonableness, which modified belief, also modified communications. As a matter of rhetoric, the prosecutor omitted repetition of the word reasonableness for the sake of brevity since the repetition was as needless as repeating large in the sentence, He wanted a large truck or van, where large as the initial modifier applies to both truck and van. The only basis to find the instruction problematic would be if the prosecutor had plainly stated to the Grand Jury that communication from other officers could not be a factor in considering defendants state of mind. But, that is not what the prosecutor said. It would be unwarranted to conclude that the prosecutor instructed the Grand Jury to disregard what the fellow officers communicated to defendant. Indeed, the prosecutor repeatedly instructed the Grand Jury that it was to assess what a reasonable person would believe based upon what defendant knew (MT 15-16, 2123, 25-26). Obviously, what defendant knew included communications from other officers. The prosecutor never gave an instruction that was the opposite of that. Moreover, even if the initial instruction had any ambiguity, the response by the prosecutor to the Grand Juror, the last instruction heard by the Grand Jury, must be deemed to be the instruction upon which it relied (see Rock v. Coombe, 694 F.2d 908 [2d Cir. 1982] [significance of final instruction]), and dispelled any lack of clarity. See People v. Alvarez, 86 N.Y.2d 761, 763 (1995).

For a court to dismiss Grand Jury proceedings on the basis of instructions, such instructions must be so confusing and misleading as to substantially undermine the integrity of the proceedings. People v. Caracciola, 78 N.Y.2d 1021 (1991). Accordingly,[n]ot every omission or imprecision in the legal instruction impairs the integrity of the Grand Jury. People v. Torres, 252 A.D.2d 60, 67 (1st Dept. 1999). The supplemental instruction on justification cannot be considered so confusing and misleading as to affect the integrity of the proceedings, especially when viewed in the context of the entire charge on justification. It would indeed be ironic if an instruction designed to alleviate any prejudice to defendant arising from the testimony before the Grand Jury was read incorrectly to mean the opposite.

ROBERT T. JOHNSON District Attorney Bronx County

JOSEPH N. FERDENZI STANLEY R. KAPLAN DONALD LEVIN Assistant District Attorneys Of Counsel MAY 13, 2013