Opinion
No. 1223/2014.
11-17-2014
The PEOPLE of the State of New York v. Jerry PROVINCE, Defendant.
Fink & Katz, PLLC, by Jonathan Fink, the Defendant. The Kings County District Attorney's Office, Brooklyn, by Robert Zweibel, for People.
Fink & Katz, PLLC, by Jonathan Fink, the Defendant.
The Kings County District Attorney's Office, Brooklyn, by Robert Zweibel, for People.
Opinion
BETTY J. WILLIAMS, J.
The Defendant moves for dismissal of the indictment pursuant to CPL §§ 210.35 and 190.50. In support of the Defendant's motion, the Defendant submits only an affirmation by the Defendant's second and current counsel. The People oppose the motion as untimely and lacking in merit. For the reasons that follow the Defendant's motion is denied.
Facts
The Defendant stands charged with Assault in the Second Degree, (PL § 120.05), and other related charges. On February 11, 2014, at the Defendants arraignment on the felony complaint, the People served CPL § 190.50 notice of their intent to present the matter to the Grand Jury. During the criminal court arraignment the Defendant's first counsel served “cross–190.50 notice” of the Defendant's intent to testify before the Grand Jury. The court remanded the Defendant and ordered a psychiatric examination pursuant to CPL § 730 at the request of the Defendant's first counsel at the criminal court arraignment. The Defendant was not arraigned on March 6, 2014, when the indictment was filed with the court. On March 10, 2014, the CPL § 730 examination results indicated that the Defendant was unfit to proceed to trial. The findings of the psychiatric examination was then confirmed by the Defendant's first counsel. On May 5, 2014, the Defendant was arraigned on the indictment with Defendant's first counsel. On May 22, 2014, the court found that the Defendant was now fit to proceed on the indictment.
The Defendant's current counsel asserts that “cross–190.50 notice” was served by the Defendant's first counsel at the request of the Defendant.
The Defendant's current counsel is not sure if “cross–190.50 notice” was withdrawn at the criminal court arraignment.
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The Defendant's current counsel was assigned on May 28, 2014, when the Defendant asserted a violation of the Defendant's right to testify before the Grand Jury pursuant to CPL § 190.50. On May 28, 2014, the Defendant's current counsel successfully moved to have the Defendant's remand status changed to $50,000 bond. On June 4, 2014, the Defendant posted the bond and was released on this matter. On July 2, 2014, the court remanded the Defendant to the custody of the Department of Corrections. Over the next two and a half month, the matter was adjourned to six different court dates. This motion to dismiss the indictment for violation of the Defendant's right to testify before the Grand Jury was filed by the Defendant's current counsel on September 30, 2014.
The Law
The People are statutorily permitted to proceed with a grand jury presentment, without the defendant's testimony, where defense counsel determines there is a need for the defendant to undergo a psychiatric examination to determine the defendant's competence (People v. Lancaster, 69 N.Y.2d 20 [1986] ; People v. Peterson, 11 AD3d 336, [1st Dep't], lv denied 4 NY3d 766 [2005] ). While it is true that a defendant's right to testify before a Grand Jury must be guarded, when an order of examination pursuant to CPL § 730 is issued and the “charges contained in the accusatory instrument are subsequently presented to a grand jury, such grand jury need not hear the defendant pursuant to section 190.50 unless, upon application by defendant to the superior court that impaneled such grand jury, the superior court determines that the defendant is not an incapacitated person.” (CPL § 730.40[3] ). Once the defendant has been given sufficient notice by the People that a grand jury presentment is imminent, it is incumbent upon the defense to seek leave of the court to allow the defendant to testify before the grand jury during the period that an examination pursuant to CPL § 730 is pending (People v. Balukas, 95 A.D.2d 813 [2d Dep't 1983] ).
Where a violation of defendant's right to testify before the grand jury is asserted, relief pursuant to section CPL § 190.50, must be sought within five days of the defendant's arraignment upon the indictment. (People v. Green, 119 AD3d 23 [3d Dep't], lv denied 23 NY3d 1062 [2014] ; People v. Yontz, 116 AD3d 1242 [3d Dep't], lv denied 23 NY3d 1026 [2014] ). It is untimely to raise a motion to dismiss the indictment for violating the defendant's right to testify before the grand jury for the first time several months after arraignment on the indictment (People v. Kinlock, 57 AD3d 1227 [3d Dep't 2008] ). If the contention of a violation of the defendant's right to testify before the grand jury is not asserted in timely fashion, it is waived and the indictment may not thereafter be challenged on such grounds (People v. Simon, 101 AD3d 908 [2d Dep't], lv denied 23 NY3d 1067 [2014] ; People v. Occhione, 94 AD3d 1021 [2d Dep't], lv denied 19 NY3d 976 [2012] ).
Conclusions
The Defendant was notified, at the criminal court arraignment on February 11, 2014, that the People intended to proceed to the Grand Jury. Although the Defendant's current counsel asserts that the Defendant's first counsel served notice of the Defendant's intent to testify before the Grand Jury at the Defendant's request, there is neither an affirmation from the Defendant's first counsel nor an affidavit from the Defendant swearing to that fact. It is not clear from the record whether the Defendant's first counsel served notice of the Defendant's intent to testify before the Grand Jury merely to try to preserve the Defendant's rights or at the specific request of the Defendant. What is clear from the record, is that although the Defendant's first counsel served notice of the Defendant's intent to testify before the Grand Jury, the Defendant's first counsel correctly sought an order from the court for a psychiatric exam of the Defendant pursuant to CPL § 730. The Defendant's lack of fitness was not a mere unfounded suspicion by the Defendant's first counsel as the psychiatric examination found the Defendant to be unfit to proceed to trial. The Defendant's first counsel's request for an examination was appropriate and did not deprive the Defendant of his right to testify before the Grand Jury, but instead placed the matter within the statutory exception enunciated in CPL § 730.40 (Lancaster, supra; Peterson, supra ). The People were then permitted to proceed to the Grand Jury without the Defendant's testimony (People v. Galberth, 14 AD3d 420, [1st Dept], lv denied 4 NY3d 853 [2005] ). If the Defendant's first counsel believed the Defendant had become fit to testify in the Grand Jury before the results of the CPL § 730 examination, the Defendant's first counsel was obligated to seek leave of the court to allow the Defendant to testify before the Grand Jury (Balukas, supra ). However, the Defendant's first counsel did not seek the court's permission to testify before the Grand Jury and the Defendant was not found to be competent until over two months after the indictment was filed by the People.
Despite the Defendant's current counsel's entry into the case, the Defendant never sought to challenge the People's presentation of the case before the Grand Jury until over four months after the Defendant's arraignment on the indictment. Instead, once the Defendant's current counsel entered the case, the Defendant's current counsel successfully sought a change in the Defendant's bail status from remand to bond. The Defendant, now competent to assist in the Defendant's own defense, posted bond on June 6, 2014, and was released. The Defendant was required to seek to dismiss the indictment within five days of the Defendant's arraignment on the indictment or at the very latest, within five days of the Defendant's current counsel's entry into the case on May 28, 2014. (Green, supra; Yontz, supra ). However, the Defendant did not make the motion to dismiss the indictment until September 30, 2014. The Defendant was represented by counsel at all stages of this case from arraignment on the felony complaint when the CPL § 730 order was issued, until the filing of the Defendant's instant motion almost five month later and, as such, is barred from seeking relief under CPL § 190.50 (Simon, supra; Occhione, supra; compare People v. Chappelle, 121 AD3d1166, [3d Dep't 2014] ). Additionally, the Defendant was not prejudiced by the filing of this untimely motion because there is no evidence that the Defendant's testimony would have affected the outcome of the Grand Jury proceedings, (People v.. Rojas, 29 AD3d 405 [1st Dep't], lv denied 7 NY3d 794 [2006] ), and the motion is utterly devoid of merit because the Defendant was not deprived of his right to testify before the Grand Jury (Lancaster, supra; Peterson, supra; Balukas, supra; Galberth, supra ).
Therefore, the Defendant's motion to dismiss the indictment pursuant to CPL §§ 210.35 and 190.50 is denied as untimely and on the merits. (CPL §§ 190.50[5][b] & 730.40[3] ).
The foregoing constitutes the decision and order of the Court.