JULIO MONTANEZ

A three-count indictment against a Jamestown man involved in the October 2019 shooting death of another person during a reported drug deal has been dismissed.

Chautauqua County Court Judge David Foley on Thursday dismissed the indictment — which included charges of second-degree murder and two counts of second-degree attempted murder — against 26-year-old Julio E. Montanez. The city man has been jailed since the Oct. 6, 2019, death of 29-year-old Justin M. Gibbons.

According to information provided in Foley’s 10-page ruling, Montanez had been contacted to arrange a drug sale in the parking lot of a bar in Sherman. During the transaction, Gibbons and another person allegedly began to strike and kick Montanez.

At one point, Montanez retrieved a gun and fired several rounds into a vehicle occupied by Gibbons and two other people. One bullet struck the driver’s side door and several other rounds struck the back of the vehicle, a Subaru.

Following the shooting, the Subaru went off the road and came to a stop near the bar. Gibbons, who was struck by two bullets, was transported to Westfield Memorial Hospital where he was pronounced dead.

The Chautauqua County Sheriff’s Office investigated the shooting.

The grand jury was presented the case Nov. 13, 2019. Following a brief deliberation, the grand jury — according to Foley’s ruling — asked for clarification on the law with questions ranging from the difference between murder and attempted murder, intent versus motive, lesser included possibilities and potential defenses.

The Chautauqua County District Attorney’s Office asserted that Montanez fired into a car as the driver was trying to flee the scene.

Foley ruled that the DA’s office failed to properly handle the grand jury proceeding regarding potential defenses for the shooting, described at various points as a “robbery” or “attempted robbery.”

“Although the People have broad discretion in presenting a case to a Grand Jury and need not present evidence favorable to the Defendant, including every complete defense suggested by the evidence, the People must present such evidence if a defense rests upon the potential for eliminating a needless prosecution and which is reasonably supported by the evidence,” Foley said, later adding, “In assessing whether the evidence presented supports a justification defense, the testimony before the Grand Jury must be viewed in the light most favorable to the defendant.”

“Whether the threatened use of deadly physical force against the Defendant or that a robbery or attempted robbery had abated enough to characterize Defendant’s use of deadly physical force … as excessive is a question of fact left to be resolved by the Grand Jury. And although the District Attorney argues before this Court, and also improperly to the Grand Jury, that the three were fleeing, that may not be the case. At a minimum it is up to the Grand Jury to decide the facts.”

He added: “Failure to furnish complete instructions to a Grand Jury where the evidence reasonably supports the possibility that no indictment may be returned renders the proceeding defective.”

Patrick Swanson, county district attorney, released the following statement Thursday: “What I can say is that I could not disagree more with the court’s decision. We firmly believe we followed the penal law. Given my ethical limitations, I cannot outline the facts or the law that firmly support my position. I am deeply disappointed we find ourselves in this position. We plan to move forward as expeditiously as possible.”

The DA’s office has 30 days to bring the case back to a grand jury.

Montanez has been represented by Ned Barone, the county’s public defender, who in July filed a motion with Foley to dismiss the indictment citing errors made during grand jury action.

Barone said he was pleased with Foley’s ruling.

“I think, in my opinion, we believe the county court made the right decision,” Barone told The Post-Journal. “It’s, of course, a drastic remedy. Under the law, Judge Foley had no options, he had no alternative. Once we presented the motion, there was only one right answer and he made the right decision.”

Regarding Montanez, who remains in jail, Barone said he plans to “address the court to see what we can do going forward.”