
    The People of the State of New York, Appellant, v Robert Valles, Respondent.
    Argued February 20, 1984;
    decided May 8, 1984
    
      POINTS OF COUNSEL
    
      Mario Merola, District Attorney (Mark L. Freyberg and Steven R. Kartagener of counsel), for appellant.
    The Grand Jury proceeding was not “defective” due to the absence of an instruction by the prosecutor on the affirmative defense of extreme emotional disturbance. (.People v Calbud, Inc., 49 NY2d 389; People v Shelton, 88 Mise 2d 136, 78 AD2d 821; People v Casassa, 49 NY2d 668; People v Patterson, 39 NY2d 288; People v Ford, 102 Mise 2d 160; United States v Calandra, 414 US 338; Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14; People v Rosenbaum, 107 Mise 2d 501; People v Galuppo, 98 Mise 2d 395; People v Karassik, 90 Mise 2d 839.)
    
      Barry C. Scheck and Lawrence A. Vogelman for respondent.
    The courts below were correct in finding that respondent was prejudiced, and the Grand Jury misled by the District Attorney’s failure to charge the affirmative defense of extreme emotional disturbance. (People v Calbud, Inc., 49 NY2d 389; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801.)
   OPINION OF THE COURT

Wachtler, J.

Defendant was arrested and charged with having shot and killed a man. Exercising his right to testify before the Grand Jury, defendant asserted that the shooting occurred as the result of his efforts to protect his stepdaughter from an attack. The charge of murder in the second degree, and upon defendant’s specific request, the complete defense of justification, were submitted to the Grand Jury for its consideration. Defendant was indicted for murder in the second degree.

The evidence before the Grand Jury was clearly sufficient to establish a prima facie case. The indictment has been challenged on the ground that the Grand Jury proceedings were rendered defective by the prosecutor’s failure to instruct that body concerning the affirmative defense of extreme emotional disturbance. Although that defense may have been suggested by the evidence, the courts below erred in dismissing the murder count of the indictment on this ground.

The District Attorney is required to instruct the Grand Jury on the law with respect to the matters before it (CPL 190.25, subd 6). Although the Grand Jury need not be charged with the same degree of precision as the petit jury, the District Attorney must give guidance adequate for the Grand Jury to carry out its function. We have held that, in the usual case, it is “sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime” (People v Calbud, Inc., 49 NY2d 389, 394-395). In this connection, we have recognized that a failure to furnish adequate or complete instructions may, in a given case, render the Grand Jury proceedings defective, mandating dismissal of the indictment {id., at p 395; CPL 210.20, subd 1, par [c]; 210.35, subd 5). This does not mean, however, that the Grand Jury must be charged with every potential defense suggested by the evidence.

The extent of the District Attorney’s obligation to instruct the Grand Jury concerning defenses must be defined with reference to the role of that body. “The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution” (People v Calbud, Inc., 49 NY2d 389, 394, supra). Viewed from this perspective, the question of whether a particular defense need be charged depends upon its potential for eliminating a needless or unfounded prosecution.

The appropriate distinction for this purpose is between exculpatory and mitigating defenses. An exculpatory defense is one that would, if believed, result in a finding of no criminal liability. The Grand Jury’s function being to protect citizens from having to defend against unfounded accusations, such complete defenses would ordinarily rest peculiarly within that body’s proper domain. Thus, in the present case, had the Grand Jury believed that defendant’s acts were justified, no indictment would have been returned and an unwarranted prosecution would have been avoided. It is the possibility that criminal proceedings need not be undertaken at all which underscores the importance of the Grand Jury’s consideration of such defenses. This is so notwithstanding that, once a case goes to trial, the petit jury may disagree on the applicability of the same defense and find the defendant not guilty.

When a defense is urged in mitigation, on the other hand, it is not done in an effort to avoid criminal liability entirely; rather, it is an attempt to reduce the gravity of the offense committed. If believed, such a defense would not, by itself, result in a verdict of not guilty, and thus the criminal prosecution would not have been unwarranted. Because consideration of such defenses by the Grand Jury would not prevent unfounded criminal accusation, but would, at best, merely reduce the degree of the crime charged, their presentation to the Grand Jury will not ordinarily be mandated. The District Attorney is free to seek an indictment for the highest crime the evidence will support. It is not necessary that, having presented a prima facie case and those complete defenses suggested by the evidence, the District Attorney go further and present defenses in mitigation, which ordinarily will involve matters for resolution by the petit jury upon a full record.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the count of the indictment charging defendant with murder in the second degree reinstated.

Kaye, J.

(concurring). While concurring in the result reached, I write to express disagreement with the statement added by the majority that a District Attorney is free to seek indictment for the highest crime the evidence will support, and need never present defenses in mitigation, however conclusive or pervasive the evidence in support of such defenses might be.

By holding that a defense must be submitted to the Grand Jury only if its acceptance would result in exoneration, the majority ascribes an unduly narrow function to the Grand Jury. To be sure, the Grand Jury performs a vital function in determining whether any prosecution should be initiated. But it is relied upon as well to decide which crime should be charged, and the degree of crime charged may have important ancillary consequences. For example, the degree of crime charged impacts plea bargaining (CPL 220.10); whether a defendant is charged with a felony or a misdemeanor can determine other rights (see, e.g., CPL 30.30); and the effect of the crime charged upon a petit jury or sentencing Judge can hardly be ignored. (People v Felix, 58 NY2d 156, 164.) Since reliance is placed not only on the fact of an indictment but also on which offense is charged, the prosecutor should have some obligation to instruct that body on mitigating defenses raised by the evidence, certainly where the evidence supporting such defenses is clear and pervasive. (Cf. People v Rosenbaum, 107 Misc 2d 501; People v Galuppo, 98 Misc 2d 395; People v Karassik, 90 Misc 2d 839.) Such an obligation is particularly necessary in light of the trial court’s inability to dismiss or amend an indictment where the evidence is legally insufficient to establish the offense charged but sufficient to support any lesser included offense (CPL 210.30; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 200.70, p 523).

The majority’s sweeping statement is not supported by People v Calbud, Inc. (49 NY2d 389), the only case cited in the opinion. Calbud did not even address the subject of mitigating defenses. In that case, the prosecutor sought an indictment for second degree obscenity and charged the Grand Jury by reciting the statutory definition of obscenity. Noting the lesser degree of precision necessary when charging a Grand Jury, the court held that the indictment need not be dismissed simply because the prosecutor failed to instruct the Grand Jury to judge the material using State-wide contemporary community standards. In acknowledging that one of the primary functions of the Grand Jury is to “determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”, the court did not — as the majority does today — ignore the importance of the Grand Jury’s decision as to which crime to charge. Indeed, in citing CPL 190.65 (subd 1), the court recognized that the Grand Jury may indict for an offense when the evidence “provides reasonable cause to believe that such person committed such offense” (emphasis supplied).

A charge on extreme emotional disturbance not, in any event, warranted in the present case. Though both courts below found error in the prosecutor’s Grand Jury presentation (the Appellate Division terming the issue “close”), whether the evidence was sufficient to warrant instruction as to the extreme emotional disturbance defense is a question reviewable in this court. As noted, Grand Jury charges are scrutinized with less vigor than petit jury charges (People v Calbud, Inc., 49 NY2d 389, supra), and the evidence in my view did not so clearly support the extreme emotional disturbance defense as to require its submission. Moreover, it is significant that defense counsel, who was actively involved in presenting evidence and requesting detailed charges, did not specifically seek the extreme emotional disturbance defense. The prosecutor refused counsel’s request to charge manslaughter in the first and second degrees because more than two shots were fired. The prosecutor apparently understood the defense to be requesting a first degree manslaughter charge on the basis of subdivision 1 of section 125.20 of the Penal Law (causing death with intent to cause serious physical injury), since the number of shots fired would be more relevant to that theory than to the extreme emotional disturbance defense. While defense counsel in this situation cannot be held to the same requirement of precision in making requests as exists in the trial context, the courts should not ignore the absence of an actual request for such instruction by a defense attorney actively involved in the Grand Jury presentation. This is especially so where the facts indicate that defense counsel may well have made a tactical choice in omitting the request, believing that the Grand Jury would be more likely to accept the justification defense if not provided with the opportunity to conclude that respondent had fired the gun under extreme emotional disturbance.

Meyer, J.

(dissenting). In holding that whether the Grand Jury must be instructed concerning the effect of evidence presented to it the person under investigation, a distinction is to be made between exculpatory defenses, which must be charged, and mitigating defenses, which need not be, the majority ignores the common-law history of the Grand Jury, the purpose of allowing a potential defendant to appear before that body and to request that it call other witnesses on his or her behalf, and the substantial prejudice that may result to one indicted for a higher degree of offense than the evidence warrants. I, therefore, dissent.

Concentrating on the statement in People v Calbud, Inc. (49 NY2d 389,394) that the Grand Jury’s primary function is to “determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”, the majority overlooks the role of that body, likewise declared in Calbud (49 NY2d, at p 396; accord Matter of Keenan v Gigante, 47 NY2d 160, 168) as a buffer against “unfounded and arbitrary accusations”, or, as the Supreme Court put it, “as a protector of citizens against arbitrary and oppressive governmental action” (United States v Calandra, 414 US 338, 343; see United States v Mandujano, 425 US 564, 571 [plurality opn]).

Unquestioned since the Grand Jury’s return of “Ignoramus” (we know nothing of it) in the Earl of Shaftesbury’s case in 1681 (8 How St Tr 759; Kuh, Grand Jury “Presentment”: Foul Blow Or Fair Play?, 55 Col L Rev 1103, 1107-1109; Edwards, The Grand Jury, pp 28-29), and the similar action of two colonial Grand Juries in 1734 in John Peter Zenger’s case (Kuh, loc cit.; Note, 74 Harv L Rev 590, 591), has been the right of the Grand Jury to nullify the law by refusing to indict notwithstanding the presentation to it of evidence sufficient to sustain an indictment. Not as prominently referred to in the literature, but nevertheless clear, is the fact that the degree of the offense was within the competence of the English Grand Jury as well. Thus, John Somers, Lord High Chancellor of England, states in The Security of Englishmen’s Lives (published in 1681, in relation to the Shaftesbury matter) that the Grand Jury, having heard all available proof, “are carefully to examine the nature of the facts, according unto the rules of the common law, or the express words of the statutes, whereby offences are distinguished, and punishments allotted unto each of them: it is true, that upon hearing the party, or his witnesses, the Petit Jury may acquit or judge the facts in the indictment to be less heinous, or malicious, than they were presented by the Grand Jury, but cannot aggravate them; which being considered, it will easily appear, by the intent and nature of the powers given unto Grand Juries, that they are by their oaths obliged, and their institution, ordained to keep all injustice from entering the first gates of our courts of judicature, and to secure the innocent not only from punishment, but from all disgrace, vexation, expence, or danger” (at pp 80-81 [emphasis supplied]). Referring to a statute providing that no one should be indicted except upon such “proof, as by the Jury, by whom he shall be indicted, shall be thought good, lawful and sufficient to prove him, or them guilty of the said offences”, Somers continued: “Herein is declared, the only true reason of indictments, i.e. the Grand Jury’s judgment that they have such testimonies as they esteem sufficient to prove the party indicted guilty of the crimes whereof he is accused, and whatsoever the indictment doth contain, they are to present no more, or other crimes, than are proved to their satisfaction, as upon oath they declare it is, when they present it” {id., at p 89 [emphasis supplied).

Not surprisingly, because our “grand jury was intended to operate substantially like its English progenitor” (Costello v United States, 350 US 359, 362), similar expressions will be found in Mr. Justice Stephen Field’s 1872 charge to a Grand Jury while on circuit (2 Sawyer 667, 670): “if, in the course of your inquiries, you have reason to believe that there is other evidence, not presented to you, within your reach, which would qualify or explain away the charge under investigation, it will be your duty to order such evidence to be produced”, and in the 1969 holding of the District of Columbia Circuit Court of Appeals in Gaither v United States (413 F2d 1061, 1066) that “The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury — subject to its popular veto, as it were” (emphasis supplied).

The issue does not appear to have been passed upon by a New York appellate court until the present case, and by the same Appellate Division, in dictum, in People v Isla (96 AD2d 789). Trial courts that have confronted the question have held that there is a duty on the prosecutor to instruct the Grand Jury with respect to affirmative defenses (People v Karassik, 90 Misc 2d 839 [entrapment]; People v Smith, NYLJ, March 16, 1976, p 7, col 3 [duress]; see People v Rosenbaum, 107 Misc 2d 501 [claim of right as to taking]; contra People v Brown, 87 Misc 2d 403 [agency, entrapment]), any exceptions to the governing Penal Law provision (People v McWilliams, 96 Misc 2d 648), exculpatory evidence (People v Friedman, 116 Misc 2d 212; People v Ferrara, 82 Misc 2d 270), the degrees of larceny and the relationship of defendant’s actions to his position as executor (People v Mackey, 82 Misc 2d 766), and the alternate actions open to the Grand Jury under CPL 190.60 (see People v Filis, 87 Misc 2d 1067) but not as to its right to request removal of a charge to the Family Court (People v Harris, 100 Misc 2d 736) and not as to the effect of mental disease or defect on criminal responsibility (People v Galuppo, 98 Misc 2d 395). Although those decisions evidence a need for guidance from this court on the question, the majority’s bright line distinction between exculpation and mitigation is, in my view, an improper answer for it ignores the purpose of CPL 190.50 (subds 5, 6) permitting defendant to present his own testimony before the Grand Jury and request that body to call particular witnesses, and in many cases will, contrary to the protective function of the Grand Jury, result in substantial prejudice to the person under investigation.

By giving such a person the right to appear before the Grand Jury on his or her own behalf and to request that body to call others as witnesses, CPL 190.50 emphasizes the Grand Jury’s role as protector against unfounded and arbitrary accusation. The statute has little meaning, however, unless the Grand Jury is informed of the effect to be attributed to the evidence thus placed before it. The failure to do so will, moreover, have very real and important results for the person being investigated.

Thus, under our holding in People v Glover (57 NY2d 61), a defendant is entitled to a lesser included offense instruction only if it is impossible to commit the offense charged in the indictment without by the same conduct committing the lesser offense. On that basis we held Glover not entitled to an instruction on criminal facilitation in the second degree (Penal Law, § 115.05) as a lesser included offense of the charge of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41, subd 1), because it was theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else. Had the evidence on which Glover sought the criminal facilitation instruction been presented by him to the Grand Jury, that body may well have indicted him for both sale and criminal facilitation, or possibly only for the latter offense. Only if they indicted for facilitation alone or for both would facilitation be an option that the petit jury could consider. The point is that the prosecutor is but a legal advisor to the Grand Jury (CPL 190.25, subd 6), that although he “may appropriately explain the law and express an opinion on the legal significance of the evidence * * * [he] should give due deference to its status as an independent legal body” (ABA Standards Relating to The Prosecution Function [2d ed], Standard 3-3.5 [a]), that the ultimate decision on what to charge is for the Grand Jury, not the prosecutor, and that, therefore, the majority paints with much too broad a brush in suggesting that (majority opn, at p 39) “defenses in mitigation * * * ordinarily will involve matters for resolution by the petit jury” rather than the Grand Jury. And the difference between sale (an A-II felony) and facilitation (a class A misdemeanor) being the difference between a maximum sentence of life imprisonment and a one-year maximum, the result to a person accused is far from insignificant or harmless. Indeed, since the failure properly to instruct the Grand Jury results in there being fewer options presented to the petit jury, it may even be that it “raise[s] difficult constitutional questions.” (Keeble v United States, 412 US 205, 213.)

Moreover, should the Grand Jury decide to “ignoramus” the higher and indict only for the lesser degree of crime, the person accused will be affected in many important ways, including the amount of bail (CPL 510.30, subd 2, par [a], cl [viii]), the plea bargaining process (CPL 220.10), the possibility of probation as against imprisonment (see People v Felix, 58 NY2d 156), the fee that will be charged by his attorney, and the media publicity that will be generated by the accusation. Yet it was just such “trouble, expense and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury” (Jones v Robbins, 8 Gray [Mass] 329, quoted in Ex parte Bain, 121 US 1, 12) that the Grand Jury was established to prevent. We should not permit the importance of the Grand Jury to be thus frittered away.

Judges Jasen, Jones and Simons concur with Judge Wachtler; Judge Kaye concurs in result in a separate opinion in which Chief Judge Cooke concurs; Judge Meyer dissents and votes to affirm in another opinion.

Order, insofar as appealed from, reversed, etc. 
      
       Weapons-related charges were also submitted to the Grand Jury. These counts of the indictment are not challenged on this appeal.
     
      
       Judge Kaye’s concurrence, while agreeing with much that follows, concludes that the evidence did not so clearly support the defense of extreme emotional disturbance as to require instruction to the Grand Jury and that defendant, in effect, waived the presentation of the issue to the jury. Respectfully, I note that both lower courts found the evidence sufficient and that its weight is for the Grand Jury not the courts. As for waiver, I note that, although defendant’s attorney did not mouth the words " xtreme emotional disturbance,” he did notify the Assistant District Attorney that defendant’s stepdaughter had been raped a year before and that she told defendant of the incident, and stated that “it is important that the Grand Jury be informed of this incident and the defendant’s knowledge of it in order that defendant’s state of mind at the time of the shooting be fully understood.” He also requested a charge on manslaughter in the first degree, which as defined by subdivision 2 of section 125.20 of the Penal Law includes causing death “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance”. The presentation of the evidence to the Grand Jury would serve no purpose unless they were informed of its significance and we should not woodenly insist upon the mouthing of magic words, at the risk of being held to have waived, when the issue is as clearly presented to the prosecutor as it was on this record.
     