Opinion
No. 6862/11.
2012-04-9
The PEOPLE of the State of New York v. James HAMLETT, Defendant.
Charles J. Hynes by ADA Nicole Junior, District Attorney, Kings County, Brooklyn, for the People. Adrian Lesher, Esq., Legal Aid Society, Brooklyn, for Defendant.
Charles J. Hynes by ADA Nicole Junior, District Attorney, Kings County, Brooklyn, for the People. Adrian Lesher, Esq., Legal Aid Society, Brooklyn, for Defendant.
MATTHEW J. D'EMIC, J.
Defendant's motion to re-argue the denial of his motion to dismiss the indictment under CPL Sections 190.50, 201.20 and 210.35 is granted and upon re-argument counts one and two are dismissed with leave to the People to re-present.
On June 24, 2011 the defendant was arraigned on docket 2011KN050166, consisting of several misdemeanors and one felony charge of Assault in the Second Degree. On that date, defendant served cross 190.50 notice, asserting his intention to testify before any grand jury. Five days later the People dismissed the felony count and proceeded in criminal court on the misdemeanors.
On August 8, 2011, the defendant was arraigned on subsequent charges, including felony criminal contempt under docket 2011KN062440. On that date, the defendant did not serve cross 190.50 notice and his attorney announced that he would not testify in any grand jury proceeding.
Later that month the defendant was indicted by a grand jury. The first two counts of the indictment for Assault in the Third Degree and Attempted Assault in the Third Degree relate to docket 2011KN050166 where defendant served written notice on the district attorney of his intent to testify in any grand jury proceeding. The remaining seven counts relate to docket 2011KN062440 where defendant asserted that he would not testify.
It is clear that once the felony count in docket 2011KN050166 was dismissed the People had no obligation to notify the defendant of the grand jury proceeding under CPL Section 190.50(5)(a). Nonetheless, under that same section, a criminally accused has a right “to appear before such a grand jury as a witness in his own behalf if, prior to the filing of any indictment ... he serves upon the district attorney ... a written notice making such request ...”. Since defendant served such notice his statutory right to testify with respect to matters pertaining to this docket were violated and must be dismissed (People v. Evans, 79 N.Y.2d 407;People v. Hawkins, 193 A.D.2d 524).
No such violation occurred with respect to docket 2011KN062440, however, and the motion is denied with respect to the seven counts relating to that docket.
This constitutes the decision and order of the court.