The Defendant, Yusef Brown, is charged in Indictment No. 2007-1207-1 with the crimes of Assault in the Second Degree in violation of Section 120.05(2) of the Penal Law and Criminal Possession of a Weapon in the Third Degree in violation of Section 265.02(1) of the Penal Law for an incident which allegedly occurred in the City of Syracuse on September 4, 2007. He was arraigned in this Court on March 6, 2008, at which time a plea of Not Guilty was entered to both charges.

By Omnibus Motion dated April 2, 2008, the Defendant moved to dismiss the Indictment alleging that he was not afforded his statutory right to testify pursuant to Section 190.50 of the Criminal Procedure Law. The People contend that presentation to the Grand Jury was proper pursuant to Section 730.40 of the Criminal Procedure Law because the Defendant was incapacitated, and that the motion is untimely. While the facts of the case present a number of unique issues, for reasons discussed below, the Defendant's motion must be denied.

The Defendant was arraigned in Syracuse City Court on the charges contained in the Indictment and Defense Counsel Linda Gehron, Esq. was assigned to represent him. Thereafter a Preliminary Examination was held in that Court on September 10, 2007, before the Hon. Jeffrey [*2]Merrill and on September 13, 2007, before the Hon. Steven Dougherty which resulted in the Defendant being held for action by the Grand Jury.

On October 5, 2007, a Notice pursuant to Criminal Procedure Law Section 190.50 was sent to the Defendant advising him that the case was to be presented to the Grand Jury, and that time for him to testify was being reserved on October 12, 2007 at 9:30 A.M.

On October 11, 2007, Ms. Gehron appeared in this Court seeking to review the Defendant's bail status. During that appearance, she requested that the Court order an examination of the Defendant for competency pursuant to Article 730 of the Criminal Procedure Law, and the Court ordered the examination to be performed at the Onondaga County Justice Center where the Defendant was being held.

That same day, Ms. Gehron wrote to the Assistant District Attorney handling the case, Joseph Coolican, and stated;

"While I acknowledge that you are free to present the instant matter to the

grand jury while Mr. Brown undergoes an examination to determine his competence,

I nevertheless do respectfully request that you keep the current offer (plea to CPW 3rd

and receive 2-4 years) open until we receive the results of the examination or, in

the alternative, that you do not complete presentment until we receive the results,

given that at the present time my client has expressed the desire to testify as

offered by your letter of October 5, 2007.

Following further evaluation, it may be recommended that my client

receive certain medication. If so, it is possible that he would be in a better

condition to consider the offer under such a regimen."^[FN1]

On October 12, 2007, this Court signed the Order directing that a Section 730 examination be conducted at Defense Counsel's request and the Defendant was not allowed to appear before the Grand Jury.

On October 25, 2007, the Court was furnished with the reports of the two examiners who found the Defendant unfit to proceed.

The People rely upon Section 730.40(3) of the Criminal Procedure Law which provides,

"When a local criminal court has issued an order of examination or a temporary

order of observation, and when the charge or 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 the

defendant to the superior court that impaneled such grand jury, the superior

court determines that the defendant is not an incapacitated person."

In the instant case, the Order of examination was issued by this Court, a superior court, upon the request of the Defendant's attorney during an appearance to review the Defendant's bail. As noted previously, a Preliminary Examination had been held in Syracuse City Court and the Defendant had been held for action by the Grand Jury, thereby divesting that court of [*3]jurisdiction.^[FN2] In light of that, notice of the Grand Jury proceeding and the opportunity to testify was not required.^[FN3] Nevertheless, notice of the presentment and a time for the Defendant to appear was provided. Despite this superfluous notice, the People were entitled to proceed without the Defendant appearing before the Grand Jury because the provisions of Section 730.40(3) of the Criminal Procedure Law permitted it.

Contrary to the Defendant's assertion, an Order of Commitment to the Office of Mental Health is not required to trigger the provisions of Section 730.40 of the Criminal Procedure Law. Section 730.40(3) clearly states that the defendant need not be heard when the court has issued an order of examination. As noted above, this Court entered such an Order on October 12, 2007, the date the Defendant was scheduled to testify and had informed both the People and the Defendant of its intent to do so the prior day.

The Court of Appeals affirmed the vitality of this position in People v Lancaster, 69 NY2d 20, 30-31 (1986).This was reaffirmed in People v Peterson, 11 AD3d 336 (Appellate Division 1st Department [2004]). In Patterson, like the instant case, the trial court ordered the Section 730 examination at the behest of defense counsel, and the case was presented to the grand jury prior to the examination itself being conducted. Despite the fact that the defendant was found competent, the Appellate Division still held it was proper for the prosecution to proceed with the grand jury presentation and Section 190.50 was not violated.

Although the foregoing analysis provides a sufficient basis alone to deny the motion, the Court would be remiss in not also finding that defense counsel conditionally waived any objection to the case being presented to the grand jury in her correspondence to the assistant district attorney presenting the case on the day prior to the case being presented. As noted previously, she wrote;

"While I acknowledge that you are free to present the instant matter to the

grand jury while Mr. Brown undergoes an examination to determine his competence,

I nevertheless do respectfully request that you keep the current offer (plea to CPW 3rd

and receive 2-4 years) open until we receive the results of the examination or, in

the alternative, that you do not complete presentment until we receive the results,

given that at the present time my client has expressed the desire to testify as

offered by your letter of October 5, 2007. (Ibid)

Although the prosecution elected to proceed, the plea offer was kept open until the [*4]Defendant rejected it subsequent to his arraignment on the Indictment after he was determined to be fit to proceed. Given this waiver, the Court finds no error in the People's decision to proceed while the Defendant was incapacitated.

Finally, the Court notes that the People are correct in their assertion that the motion is untimely. Section 190.50(5)(c) of the Criminal Procedure Law provides:

"Any indictment ...obtained or filed in violation of the provisions of paragraph (a)

or (b) is invalid, and upon a motion made pursuant to ...section 210.20, must be

dismissed; provided that a motion based upon such ground must be made not

more than five days after the defendant has been arraigned upon the indictment...

If the contention is not so asserted in a timely fashion, it is waived and the

indictment...may not thereafter be challenged upon such ground."

Upon receipt of the Order that the Defendant was fit to proceed, he was arraigned in this Court on March 6, 2008. The motion to dismiss this Indictment was made as part of the Defendant's Omnibus motion dated April 2, 2008, 27 days following the arraignment. As such, the issue was waived and may not be asserted.

For all of the foregoing reasons, the Defendant's motion is DENIED.

DATED:July 15, 2008

Syracuse, NY

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HONORABLE JOSEPH E. FAHEY, J.C.C.