SUPREME COURT COUNTY OF ONONDAGA STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, Indictment#2015-0933-1 v. Index#15/1064 KADEEM ARRINDELL-MARTIN, Defendant. DECISION/ORDER Defendant moves to dismiss the Indictment on the ground of Grand Jury defectiveness. For the reasons that follow, the motion is granted. THE GRAND JURY RECORD The Grand Jury record reveals that at the commencement of the proceeding, the Grand Jury was told that it was going to be asked to consider two issues: (1) charges against Kadeem Arrindell-Martin, and (2) whether certain actions of police officers were justified. (GJ. 1), There was no limiting instruction as to what evidence could be considered with respect to these two issues. After all of the “involved” officers testified, the following occurred between the Grand Jurors and their advisers in relation to Grand Jurors’ curiosity about the schedule, (G.J. 281). The secretary: “Is it a plan for us to vote on Friday?‘We don’t know what we are charged with or who is being charged. It’s tough to know what we are deciding.” (G.J. 282). A fellow Grand Juror concurs stating: “I agree. There is a lot of unknown things.” ADA Newtown then reminds the Grand Jury as to what ADA Coolican had stated on page one of the Grand Jury record. Again, there was no instruction to the Grand Jury that any evidence was limited to any particular issue or to the Particular defendant under investigation or officers under the investigation. (G.J. 282-287), ADA Newtown advises the Grand Jury of the order in which the two issues to be addressed would be submitted to the Grand Jury, which is the gravamen of the defendant’s defectiveness claim. (GJ. 283). ADA Newtown properly advises the Grand Jury as to what the issues are they will be asked to address. At the end, a Grand Juror confirms that, “So after the investigation and we vote on justification, etc, then do we know the charges against Kadeem?” To which, ADA Newtown responds, “Yes.” (G.J. 287). On the next page, ADA Coolican again explains the procedure and the order in which the issues will be addressed. ADA Coolican broaches the issue in the order in which the defense contends the issues should have been broached absent the 2expert witness. ADA Coolican says first the Grand Jury will consider “whether Kadeem Arrindell-Martin was lawful when he was encountered by police, reckless or potentially intentional, and then secondly whether the police actions in firing their guns was, in fact, justified.” (G.J. 288). It was at this point that the People called their expert witness, Mr. Davide Barnabi. As stated in their written submission in opposition to this motion, one of the People’s purposes in calling the expert was to explain why the officers had, in the People’s words, “tunnel-vision”.' The expert explained, “auditory or visual exclusion” as the reason for such tunnel-vision. (GJ. 301-302). The People elicited the expert's opinion which included, “It would be my professional opinion that they are looking at the threat, In this circumstance, the ‘ein the threat was the vehicle and that would be an explanation on why the rounds 2 body of the vehicle as opposed to the person occupying the vehicle.” (G.J. 306). The expert described studies on how auditory or visual exclusion may result in individuals who “recall the incidents completely different and there is, it’s amisconception between, it’s a difficult process because sometimes it seems as if the individuals who were actually involved are cooking their books or collaborating, As to Detective Ballagh (G.J. 225); as to Detective Fiffe (G.J, 199); as to Detective Falkowski (G1. 165).trying to collaborate stories in order to make it seem like it’s in their favor whereas in my professional opinion and from training hundreds of officers it’s certainly not the case. They are recalling the incident as they felt it and as they saw it and another individual standing beside them are recalling the incident as they felt it and saw it. Someone who is standing twenty feet away is recalling the incident as they felt and saw it.” (G.J. 315-316). ‘The expert testified that he had reviewed “all police witness statements” and “civilian statements” and “pictures and reports” and “attended the crime scene.” (G.J. 296). The expert made it clear that he relied upon those reports when he testified that, “So, in this circumstance from the witnesses’ statements that Ihave Tead and the reports that I have read and from examining pictures at the crime scene, it would be my professional opinion that the threat in these circumstances is actually the vehicle and not the operator of the vehicle.” (G.J. 299). A Grand Juror questions the testimony of the expert that the officers were shooting at the car as a threat rather than the driver by asking, “If you are firing at the windshield heading towards you, firing through the rear windshield, you would think you are trying to stop whoever is driving the vehicle?” (G.J. 333). It is unclear if the Grand Juror or the witness is talking about Detective Eiffe who testified to seeing the driver’s window shatter (G.J. 200) or Detective Ballagh who chased the car. (G.I. 220-221),‘The expert answers by referring to one of the police reports as follows: “So the officer that fired into the window, in his witness statement he advised that he felt for the safety of his officers, his co-workers.” This was in direct contravention of the testimony of the officers attesting to their “tunnel-vision” previously referenced, The expert continues, “So it would be my professional opinion that the officer because of the threat to him perceived the operator of the vehicle is not the threat to him. The reason why he is shooting is to stop the threat serious bodily harm to his co-workers. So that’s why those rounds are through the windshield attempting to stop the operation of the vehicle and directed at the operator. That would be my professional opinion on that.” (G.J. 333). A Grand Jurorresponds, making reference to the tunnel-vision testimony of Detectives Eiffe, Ballagh and Falkowski states: “That’s interesting. From most of the testimony I remember, no officers seemed to be aware of anyone else, they were all focused on the vehicle and driver. No one was aware of directly in threat of being run over.” GJ. 334). “A Grand Juror: “You said the bullets are not going to stop a car, s “It is unclear whether the expert was referring solely to Detective Eiffe (G.J. 200), or solely to the testimony of Detective Ballagh (G.J. 228) 5The Witness: I said a 45 won’t stop a car. A Grand Juror: If am focused on that car, why not just get out of the way before shooting? (G.J. 322) The Witness: That’s the million dollar question, sir. The officers had positioned themselves in a situation where they perceived a serious bodily harm threat situation. They made a determination that there was no escape avenue and given the time compared to where they were and how fast the vehicle was approaching them and they resorted where what they were trained to do is when presented with a serious bodily harm death situation to themselves or a member of the public to engage with their service pistols. A Grand Juror: People would say they were trigger happy. The Witness: Certainly that is people’s opinions. I would disagree with that statement, but certainly that is anybody’s opinion.” (G.J. 322). Once the expert’s testimony was concluded, ADA Coolican gave the following instruction: “I’ll remind the Grand Jury that you heard the last witness who Was an expert witness testify based on review of affidavits and police reports and ['ll remind you you need to make your decision based on the sworn testimony here in the Grand Jury room. Does anybody have any questions about that?” (G.J. 336). At the close ofall of the evidence, ADA Coolican informs the Grand Jurythat ADA Newtown will be instructing them on the first issue that they will be asked to consider which will be justification. (G.J. 394). At which point, ADA Newtown proceeds with that instruction after submitting and summarizing pertinent excerpts of the defendant’s medical chart. At no point during this instruction is the Grand Jury instructed that the testimony of the expert witness is not to be considered in relation to their evaluation of the evidence against the defendant. The Grand Jury then voted that each of the three officers was justified. (G.J. 400). ADA Newtown then proceeded to instruct the Grand Jury with regard to potential charges with respect to the defendant. Again, there is no instruction to the Grand Jury that the testimony of the expert should not be considered as part of the evidence or in considering the evidence against the defendant. THE DEFENDANT’S CLAIMS ‘The defendant makes the following complaints as to what the testimony was and the prejudice in the record of the testimony of the expert witness in his moving papers reproduced below. “6. A review of the grand jury minutes provided by the Court reveal, among other things, that the prosecution called an expert witness, David Barnabi That witness was questioned about the propriety of the police investigation and conduct of the shooting. In general, he opined that after having reviewed all the policewitness statements, the civilian witness statements, various photographs and having visited the ‘crime scene’, that the officers appropriately and correctly believed that the defendant was a ‘threat’, 11. First, the decision in Adessa indicates that although both matters “had been presented to the same grand jury”, it does not appear that the matters were presented at the same time. (Adessa, at 681). In this case the testimony was given at the same time to the same grand jury. 12, The offering of the expert witness is a crucial difference in this Presentation. It is clear that the only reason the expert was called was for the purpose of clearing the police of wrongdoing.* That such an expert witness was offered by the prosecution put the prosecution in the position as an advocate to the grand jury on behalf of the police officers and against the defendant. This was in violation of the prosecution’s duty of “fair dealing”. (People v. Huston, 88 NY2d at 406). Also, the overall tone of the questioning of the officers (including 7 references to “brother” officers) made it clear to the grand jury what the position of the prosecution was in this investigation, namely that the defendant was guilty and the police were innocent. 13. Beyond merely clearing the police of any wrongdoing, the experts testimony had the added effect of prejudice to the defendant. Everything the expert “The court will not be addressing this claim. 8noted or opined on was based upon the defendant acting in a criminal manner. The defendant’s guilty (sic) was presumed. 14. The expert refers repeatedly to reports and statements which are not admissible and testifies about what is contained in those police reports. (GJ at 309, 325, 326, 333). He offers expert testimony regarding the vehicle collision immediately after stating that he is “not a collision reconstruction expert” (GJ at 310). 15. Repeatedly, the expert repeatedly refers to the police being presented with a “serious bodily harm situation” (GJ at 322), to the defendant being a “threat” (GJ at 308, 309, 323, 332, 333) and the officers “need for survival” (GJ at 302). He describes the other person from the second car involved as being a “smooth operator” (GJ at 307) and “cooly walking away” (GJ at 309) implying involvement in criminal activity. He also repeatedly explains lapses in memory and inconsistencies in the officer testimony (GJ at 315-316, 327). He offers a “professional opinion” that the officers were only trying to stop someone else from getting hurt (GJ at 324). None of this would be admissible at a separate proceeding involving the defendant. 16, Had there been separate presentations, the expert testimony would not have been allowed as it was clearly not relevant to whether or not there was sufficient evidence that the defendant had committed an offense. (CPL 190.50(2)). Neither would this testimony be allowed at a jury trial. The bolstering of thecredibility of the officers’ testimony was both prejudicial and improper, By definition, the only reason the expert could offer his opinion was is if the testimony of the police was taken as fact.” THE PEOPLE’S RESPONSE In their written submission in opposition to the motion, the People make the following arguments in addition to those advanced orally at calendar:’ 1. ‘That the Grand Jury was told seven times that they were going to be considering two issues.® The court agrees. 2. The Grand Jury was repeatedly advised that certain pieces of evidence should not be considered against the defendant.’ The court agrees, However, none of these instructions had anything to do with the expert’s testimony.’ 3. “Whether the Grand Jury was specifically advised that David Barnabi’s testimony was only to be considered in regard to the actions of the police officers is not dispositive. It’s very substance addressed only the police officer’s ‘February 5, 2016 calendar. Court Reporter Shelly Strader. ‘Affidavit in opposition. "Affidavit in opposition. 8 J. 182 - Gang members.; G.J. 194 - Hearsay; G.J. 215 - Drug-prone area; G.J. 318 - Cautionary instruction about expert's opinion on recreation of what happened; G.J. 333-336 - Cautionary instruction that expert witness’ testimony is not firsthand knowledge and instruction that the Grand Jury could not consider the basis for the expert's opinion as discussed in this decision; G.J. 339 - Hearsay; and G.J. 366 - Cautionary instruction regarding drug act 1029 action.”” The court will address this issue in the body of the decision. 4. “The reason that this expert was brought before the Grand Jury was because some of the officers who were eyewitnesses to the incident could not remember observing some of what was happening around them. His testimony had relevance only to the inquiry into the actions of the police and had no impact - prejudicial or favorable - toward the decision to indict the defendant.” The court will address this argument in the body of this decision. The above arguments are the only arguments that the court will address in this Decision/Order. The court is ignoring all of the other arguments advanced by the defendant in support of the motion to dismiss that the People responded to in their answering memorandum and affidavit, CONCLUSIONS OF LAW Defective Grand Jury Proceeding under the CPL The defendant bases his motion to dismiss on subdivision (5) of CPL A. §210.35. That provision reads, in relevant part, that: “A grand jury proceeding is defective.....when (5) the proceeding otherwise failed to conform to the requirements of Article 190 to such a degree that the integrity thereof is impaired and prejudice to *Memorandum in support of position. Ithe defendant may result.” In this case, the Grand Jury proceedings failed to conform to the requirements of two CPL Article 190 sections: [1] CPL §190.25(6); “Where necessary or appropriate, the court ot the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.” CPL §190.30(1): “Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.” ip Prese1 When it comes to a “dual slip” presentation as occurred here, the Court of Appeals has held that: “[AJIthough CPL 210,35 (5) does not require a showing of actual prejudice, there must be an articulable “likelihood of” or at least “potential for” prejudice.” Here, for the reasons that follow, the court finds that the likelihood of or potential for prejudice resulted to the defendant as a result of this dual slip presentation where the Grand Jury was permitted to consider evidence irrelevantto the “People v. Adessa, 89 N.Y.2d 677 (1997). 12Grand Jury’s consideration of defendant’s criminal liability and evidence that was, in addition, inadmissible. Potential Prejudice The admission of the expert’s testimony violated three principles of evidence that are applicable to the trial of a criminal case, and by statute, therefore applicable to Grand Jury proceedings: [1] lack of relevance coupled with absence of limiting instruction; [2] hearsay; and [3] lack of foundation. The legal standard for a vote of true bill on any count is whether the Grand Jury record contains “(a) evidence legally sufficient to establish that such person committed such offense......and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.” Here, the evidence was neither competent (since based upon inadmissible hearsay) nor admissible (since irrelevant with no limiting instruction). [1] Lack of Relevance "See CPL 190.30(1). P CPL 190.65(1): “Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required. as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.” 13The People agreed on the return date that the expert’s testimony was not relevant to the charges to be considered against the defendant, saying “[iJt had absolutely nothing to do with it.” The People argued that appropriate limiting instructions were given to the Grand Jury so as to make clear that the grand jurors were not to consider the expert's testimony on the issue of defendant’s criminal liability. As the Grand Jury record shows, there was no such instruction. In their written submission, the People argue that despite the lack of such an instruction, the expert's testimony addressed only the actions of the officers. As will be discussed below, the testimony went beyond that topic. Relevant evidence is evidence tending to prove or disprove a proposition in issue.'* Since the sole issue with respect to the defendant was whether or not there was reasonable cause to believe he committed one or more crimes, the expert’s testimony was inadmissible as irrelevant. The People acknowledge in their written submission that the expert was retained “to explain to the grand Jury the scientific concept known as selective attention to explain differences in witnesses’ memory and testimony.” However, the "February 5, 2016 calendar. Court Reporter Shelly Strader. “People v. Wilder, 93 N.Y.2d 352, 356 (1999){* In general, all evidence that “has any tendency in reason to prove the existence of any material fact, ic., it makes determination of the action more probable or less probable than it would be without the evidence,” is relevant and admissible unless its admission would violate some exclusionary rule.” 14overarching potential for prejudice from its admission was that its consideration by the Grand Jury improperly served to bolster the credibility of the People’s witnesses who testified about the defendant’s alleged criminal conduct, Additional. resulting potential for prejudice is set forth below: 1, The expert’s testimony bore upon whether or not deadly physical force was used by the defendant as it related to the officers’ conduct. Since the issue of defendant's life-threatening criminal conduct was subsumed within the issue of justification, the expert’s testimony resulted in the reenforcement of the officer’s testimony that defendant’s conduct constituted a threat. (G.J.397).!" The Grand Jury record shows that the expert characterized the defendant or his actions as constituting a “threat” at least seventeen times. '° 2. The expert’s testimony assuaged a concern expressed by a Grand Juror as to the officers’ need to fire at the car.” 3. The expert’s testimony inserted a “defense of others” rationale for the 'Sat calendar on February 5, 2016, the People argued that the expert was not asked in any ‘way to characterize or offer any opinions as to the defendant's actions. The People’s written submission concedes that the expert mentioned the defendant being a “threat,” but argues only in the context of the police officers perceiving the defendant to be a threat. "G.I. 300, 301, 304, 30, 308, 309, 322, 323, 329, 332, 333. ""A Grand Juror: “If am focused on that ear, why not just get out of the way before shooting?” (GJ, 322) 15officers’ conduct that a Grand Juror pointed out was never mentioned by any officer.'* 4. The expert’s testimony provided a response to a Grand Juror’s concern about why the officers took no action with respect to the “tan car.....where everything started.”"? The expert’s testimony assuaged a concern expressed by a Grand Juror as to whether one or more officers over-reacted.2” 6. Asasserted by the People in their written submission, the expert explained “to the Grand Jury the scientific concept known as selective attention to explain differences in witnesses’ memory and testimony.” 7. The expert explained why the officers might “recall the incidents 'SExpert: “The reason why he is shooting is to stop the threat serious bodily harm to his co-workers. So that’s why those rounds are through the windshield attempting to stop the operation of the vehicle and directed at the operator. That would be my professional opinion on that.”(G.J. 333). A Grand Juror responds, making reference to the tunnel-vision testimony of Detectives Biffe, Ballagh and Falkowski, states, “Thats interesting. From most of the testimony Iremember, no officers seemed to be aware of anyone else, they were all focused on the vehicle and driver. No one was aware of directly in threat of being run over.” (G.J. 334). °G.3, 324, 326 and 308. ?The Witness: That's the million dollar question, sir. The officers had positioned themselves in a situation where they perceived a serious bodily harm threat situation, They made a determination that there was no escape avenue and given the time compared to where they were and how fast the vehicle was approaching them and they resorted where what they were trained to do is when presented with a serious bodily harm death situation to themselves or a member of the public to engage with their service pistols. A Grand Juror: People would say they were trigger happy. ‘The Witness: Certainly that is people’s opinions. I would disagree with that statement, but certainly that is anybody's opinion.” (G.J. 322). 16completely different and there is, it’s a misconception between, it’s a difficult process because sometimes it seems as if the individuals who were actually involved are cooking their books or collaborating, trying to collaborate stories in order to make it seem like it’s in their favor whereas in my professional opinion and from training hundreds of officers it’s certainly not the case.” (G.J. 315-316). Despite the People’s concession that the expert’s testimony was irrelevant to the Grand Jury’s consideration of the defendant's criminal liability, an appellate court may rule otherwise. Therefore, the court will go on to discuss the evidentiary defects in the Grand Jury record that would nevertheless support dismissal. [2] Hearsay Even ifthe expert’s testimony was relevant as to the defendant, the bases for the opinions that he repeatedly offered to the Grand Jury consisted of un-admitted, unidentified hearsay statements of unidentified police officers and unidentified civilians—information to which the Grand Jury was not privy. The expert could have properly relied upon a review the Grand Jury testimony of the officers involved and civilians” or police reports that would have *\Disclosure surely would have been approved by the Grand Jury judge, but even if not, disclosure would seem to have been in accordance with the ADA’s official duties as per Penal Law 215.70. 17been admissible as business records as long as the information contained in the report was witnessed by the reporting officer ora fellow officer who had the duty to provide the information to the reporting officer.” However, the expert did not. CPL §190.30(1)provides that the rules ofevidence applicable at trial are the same in the Grand Jury with certain enumerated exceptions, none of which was applicable to support the expert’s reliance upon a review of un-admitted police reports and civilian statements, [3] Lack of Foundation If the expert’s testimony had been solely limited to expert testimony, then there would be no requirement for any foundation, Only the qualifications of the expert would be at issue. Such is the case when a qualified expert, who has been provided with no information about a specific case, testifies to the reasons why a child might delay in reporting sexual abuse. Here, however, the expert not only Stevens v. Kirby, 86 A.D.2d 391, 395 (1982)[“A report may be admitted pursuant to CPLR 4518 as proof of the facts recorded, if the informant was under a business duty to perceive the event and to transmit information concerning it to an entrant who was under a business duty to record it (Matter of Leon RR, 48 N.Y.2d 117). Police reports may be admissible as business records if the police officer was a witness to the events disclosed in the record or if the person siving the police officer the information contained in the report was under a business duty to relate the facts to him (Johnson v. Lutz, 253 N.Y. 124."}; Turner v. Spaide, 108 A.D.2d 1025, 1026 (1985)[* Police reports are admissible as business records if the reporting officer witnesses the accident or ifthe person who relayed the information to the officer was under a business duty to do so,”]. *See People v. Spicola, 16 N.Y 3d 441, 465 (2011 )[“the trial judge did not abuse his discretion when he allowed the expert to testify about CSAAS to rehabilitate the boy's credibility. 18provided expert testimony about officer reaction, but rendered no less than nineteen expert opinions™ that had no admissible foundation, and, moreover, whose inadmissible foundation the Grand Jury was told to disregard. Asto the expert’s reliance on the contents of police reports that were not admitted into evidence, the People’s instruction” that the Grand Jury could not rely The expert stressed that CSAAS was not a diagnosis; rather, it describes a range of behaviors observed in cases of validated child sexual abuse, some of which seem counterintuitive to a layperson. He confirmed that the presence or absence of any particular behavior was not substantive evidence that sexual abuse had, ot had not, occurred. He made it clear that he knew thing about the facts of the case before taking the witness stand; that he was not venturing an opinion as to whether sexual abuse took place in this case; that it was up to the jury to decide whether the boy was being truthful.”|(emphasis added). “Opinion based upon review of reports, about ability to recall (G.I. 97); opinion as to a particular action “in this case” (G.J. 298); “professional opinion” as to the “threat in these circumstances” (G.J. 299); opinion as to stimulus perceived by three officers (G.J. 300); opinion on why officers may not have heard or seen anything else (G.J. 301); opinion as to why one officer may have fired more or less shots than the other; (G.J. 304); “professional opinion that they are looking at the threat” (G.J. 306); opinion as to bullet pattern in vehicle (G.J. 306); Opinion as to why operator tan vehicle was permitted to walk away. (G.J. 308). Opinion on officer’s intent based upon review of reports (G.J. 309); “professional opinion” about collision of the two vehicles G.J. 310); opinion that officers made determination that there was no escape thereby justifying discharge of weapons (G.J. 322); “professional opinion” that the officers were attempting to protect others (G.J. 324); opinion as to the focus of the officers attention (GJ. 325); “professional opinion the main focus point would be the reversing vehicle” (G.J, 326-327) “professional opinion that officer who was standing in the middle of the road chose that vehicle reversing towards him was more important than the person sitting in the vehicle doing nothing” (G-1. 327); “professional opinion that is why the officers made a decision” (G.J. 329); “professional opinion” the focus of the officers wes on the threat” (G.J. 332); “professional opinion” that “the reason why he i, he is shooting is to stop the threat serious bodily harm to his co-workers not to himself” (G.J. 333). «Pll remind the Grand Jury that you heard the last witness ‘who was an expert witness testify based on review of affidavits and police reports and I'l remind you you need to make your decision based on the sworn testimony here in the Grand Jury room. Does anybody have any questions about that?” (G.J. 336) 19on such information was technically comect since the People did not offer the police reports that the expert had reviewed.” If the reports had been admitted, the expert could have properly relied on them because they would have been part of the record as “[i]t is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witnesses.””” The unfortunate (and likely unintended )eonsequence of the absence from evidence of the reports the expert relied upon, coupled with the instruction that the Grand Jury could only rely on evidence in the Grand Jury record, resulted in the evisceration of any foundation for the expert’s testimony." The reason is that there was no proof that the substance of the involved officers’ reports relied upon by the expert was the same as their Grand Jury testimony, which the Grand Jurors were told was the only evidence that they could consider. In fact, there is proof in the Grand As noted earlier in footnote 17, since there is no right of a defendant to confront witnesses who testify before the Grand Jury, police reports are admissible as a business record if the information contained in the reports is based upon first hand perceptions of the reporting officer or first hand perceptions by a fellow officer with a duty to report them. Stevens v. Kirby, 86 A.D.2d 391, 395 (1982); Turner v. Spaide, 108 A.D.2d 1025, 1026 (1985). *Hambsch v. New York City Transit Authority, 63 NY 2d at 725-726 **There are “two limited exceptions to this rule and held that an expert may rely on out- of-court material if “tis of a kind accepted in the profession as reliable in forming a professional opinion’ or if it ‘comes from a witness subject to full cross-examination on the trial’. In order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material.” [Hambsch v, New York City Transit Authority, 63 N.Y.24 at 125-126; People v. Sugden, 35 N.Y.2d at 460.] These two limited exceptions were not applicable here 20Jury record that at least one of the involved officer’s reports was not the same as his Grand Jury testimony as to the reasons for his actions as amply pointed out by a grand juror.” CONCLUSION For the foregoing reasons, The Indictment is dismissed pursuant to CPL §210.20(1)fe] and CPL §210.35(5) for failure to conform to the requirements of Article 190. This constitutes the decision and order of the court, Dated: March 1, 2016 John Brunetti Acting Justice of the Supreme Court Expert: “The reason why he is shooting isto stop the threat serious bodily harm to his co-workers. So that’s why those rounds are through the windshield attempting to stop the perator. That would be my professional opinion on that.”(G.J. 333). A Grand Juror responds, making reference to the tunnel-vision testimony of Detectives Fiffe, Ballagh and Falkowski states, “That's interesting. From most of the testimony 1 remember, no officers seemed to be aware of anyone else, they were all focused on the vehicle and driver. No one was aware of directly in threat of being run over.” (G.J. 334). 21