Opinion
5005/2004.
Decided September 20, 2005.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, New York, Ephraim Shaban, Esq., Joseph T. Tillman, Esq., for the People.
Office of Steven Banks, Esq., The Legal Aid Society, Brooklyn, NY, Adrian Lesher, Esq., for the Defendant.
Defendant was indicted on September 7, 2004 for Robbery in the First Degree and related crimes and was convicted of Robbery in the Third Degree after a jury trial on May 5, 2005.
While sentence was pending and approximately seven weeks after the verdict, defendant moved to dismiss the indictment on the ground that the indictment was based upon perjured testimony.
On August 10, 2005, the motion was denied based upon the following facts and conclusions of law.
DEFENDANT'S CONTENTIONS
Defendant urges that the indictment was based on perjured Grand Jury testimony of the arresting officer, Police Officer Robert Rodriguez to the effect that: 1) defendant was in possession of certain property at the time of his arrest and 2) the weapon employed by defendant was a switchblade knife.
THE FACTS
On August 3, 2004, defendant entered a store located at 5010 Avenue D, Brooklyn and encountered one Susan Osaglede, an employee of the store and Eki Omdregle, her visiting niece. Defendant ordered Ms. Osgalede to open the store's cash register and she complied. He displayed a metal object, which he said was a weapon, and proceeded to take some U.S. currency, Metro cards and pre-paid phone cards. Defendant placed these items in a white plastic bag and fled the store followed by the two women.
Police Officer Rodriguez was nearby, observed defendant running out of the store and was informed by complainants of the robbery. He immediately gave chase and pursued defendant for a short distance before apprehending and arresting him. In the course of the pursuit defendant discarded the white plastic bag which was recovered by Officer Rodriguez and found to contain U.S. currency, Metro cards, pre-paid phone cards and a knife. While in police custody, defendant was identified by Ms. Osaglede as the culprit.
On August 6, 2004, Ms. Osaglede, Ms. Omdregle and Officer Rodriguez testified before the Grand Jury. Ms. Osaglede and Ms. Omdregle described the robbery and Ms. Osaglede also testified concerning her post-arrest identification of defendant. Officer Rodriguez testified that he chased and arrested defendant and that, at the time of his arrest, defendant was in possession of a white plastic bag containing U.S. currency, Metro cards, pre-paid phone cards and a knife.
When asked if defendant had anything in his possession at the time he caught up to him, Officer Rodriguez answered, "He had a white plastic bag containing several Metro cards, United States currency and several pre-paid phone cards."
When asked what kind of knife was in the bag, Officer Rodriguez answered, "A switchblade knife type. One that you have to open it. It flips open." Regarding the white plastic bag, Officer Rodriguez testified to the following effect:
Q. Officer Rodriguez, you previously testified that when you apprehended Mr. Anderson, he was in the possession of a bag containing a number of items?
A. Yes.
On August 11, 2004, Officer Rodriguez again testified before the Grand Jury to the following effect:
Q. Officer
A. Yes.
Q. Can you tell the members of the Grand Jury, specifically, how much United States currency was inside that bag.
A. $1001, $1001 U.S. currency.
At a suppression hearing held on April 27, 2005, Officer Rodriguez testified that while he was in immediate pursuit, defendant discarded various items in his possession including his hat, sunglasses and the white plastic bag which, when recovered, was found to contain U.S. currency, pre-paid phone cards, Metro cards and a knife. The officer also stated that the knife was a "sort of box cutter knife."
At defendant's trial, which began on April 28, 2005, Officer Rodriguez, on cross-examination answered questions posed by defense counsel on inconsistencies in his testimony. Regarding the white plastic bag, he testified as follows:
Q. Now Officer, you said that you saw the defendant drop a plastic bag full of items, is that correct?
A. Yes.
Q. You said that this happened at the corner of Clarendon Road, is that — and Utica Avenue, is that correct?
A. Not at the corner of, maybe —
Q. In front of one of the houses and you're approaching —
A. Yes.
Q. — Utica Avenue? Now isn't it true that in the past, you've said something different?
A. No.
Q. Well
A. Yes.
Q. Now
. . . .
. . . .
Q. "Officer Rodriguez, you previously testified that when you approached Mr. Anderson he was in possession of a bag containing a number of items." Do you remember that question?
A. Yes.
Q. And do you remember that you gave this answer: "Yes."
A. I could not recall that.
Q. Would it refresh your recollection if I showed you the grand jury minutes?
A. Yes.
. . . .
Q. Toward the top.
A. Okay.
Q. And is that what you said?
A. Yes.
Q. Now
ADA SHABAN: That would be August 11th.
Q. Now ADA Tillman asked you and said: "Did there come a point when you caught up with Mr. Anderson?" And you answered: "Yes."
Do you remember that?
A. Yes.
Q. And then Mr. Tillman asked you, and I'm quoting: "What if anything, did Mr. Anderson have in his possession?" Do you remember that question?
A. Yes.
Q. And you answered: "He had a white bag — plastic bag containing several Metro cards, United States currency and several pre-paid phone cards."
A. Yes.
Later, during the same cross-examination, the testimony was as follows:
Q. Now Officer, you claim that you recovered $1001 in a plastic bag from the defendant, is that right?
A. Yes.
Q. Not from the defendant, but from a bag you found on the ground, right?
A. Yes.
Regarding the knife, during the same cross-examination, he testified as follows:
Q. Now that you previously identified, is that correct?
A. Yes.
Q. And that's basically some sort of utility knife; is that correct?
A. Yes.
Q. Now isn't it true —, withdrawn. Now Officer, I'm going to direct — you remember — again, you remember testifying in the Grand Jury, isn't that correct?
A. Yes.
Q. I'm going to direct you to Page 25 of your testimony in front of that Grand Jury. And isn't it true that in that Grand Jury testimony that your referred to — referred to this knife as a switchblade knife?
A. Yes.
Q. Now —
ADA SHABAN: Continue, please.
Q. And then you again call it a box cutter knife?
ADA SHABAN: No, your Honor, he said, "One that you have to open. It flips open."
On redirect examination the following testimony took place regarding the knife:
Q. Now lets get to the knife, if we may. Now you listed that as a — how does that knife open Officer Rodriguez?
A. Flips open.
Q. So you listed that as a switchblade knife?
A. Yes.
CONCLUSIONS OF LAW
A motion to dismiss an indictment must normally be made within forty-five days after arraignment. See CPL § 255.20 (1). A motion to dismiss an indictment made after the forty-five day period may be summarily denied, but the court, in the interest of justice and for good cause shown, may in its discretion, entertain and dispose of the motion on the merits prior to the imposition of sentence. See CPL § 255.20 (3).
In this case, though based upon alleged perjured testimony discovered at a pre-trial suppression hearing, defendant's motion was made almost seven weeks after the jury verdict, and eight weeks after the defense became aware of the claimed perjury. No explanation has been given for the delay and no good cause shown for a favorable exercise of the court's discretion. People v. Davidson, 98 NY2d 738, (2002); People v. Bones, 17 AD3d 689, (2d Dep't 2005); People v. Field, 161 AD2d 660, (2d Dep't 1990). Accordingly, defendant's motion to dismiss the indictment is summarily denied.
In any event, even if the court were to consider defendant's motion substantively, the motion would be denied as defendant's contentions are without merit. Regarding the description of the knife, and the possession of the white plastic bag, the inconsistencies in the testimony of Officer Rodriguez before the Grand Jury at the suppression hearing and at trial are not substantial, do not warrant the conclusion that perjury was committed, and were brought to the attention of the trial jury. People v. Kitchen, 162 AD2d 178, (1st Dep't 1990), lv denied 76 NY2d 941. See also People v. Fisher, 244 AD2d 191, (1st Dep't 1997); People v. Smith, 248 AD2d 148, (1st Dep't 1998).
Lastly, defendant's reliance on People v. Pelchat, 62 NY2d 97, (1984) is misplaced. That case involved a conviction after a guilty plea and not, as here, to a conviction after a jury trial. Once a defendant has been convicted after a trial, defendant is precluded from raising on appeal a claim that the evidence before the Grand Jury was not legally sufficient. C.P.L. § 210.30(6) and 210.20(b). In such a case, "the sufficiency of the evidence to convict following trial is manifest from the record." People v. Pelchat, supra at 109. The principle has been applied even when it has been alleged that a witness — who had recanted — had perjured himself before the Grand Jury. See People v. Bryant, 234 AD2d 605 (2d Dep't 1996). See also People v. Young, 296 AD2d 588, 589 (3d Dep't 2002) (DNA evidence later excluded defendant as source of blood found at the scene, contrary to prosecution's theory before Grand Jury); People v. Bey, 179 AD2d 905, 907 (3d Dep't 1992) (claim grand jury witness perjured himself).
In light of the above, defendant's motion was denied in all respects. The clerk is directed to send copies of this decision to defense counsel and to the District Attorney.