The People of
the State of New York
against
Jerry Province, Defendant.
|
1223/2014
For the Defendant:
Fink & Katz, PLLC
40 Exchange Place, Suite 2010
NY, NY 10005
By: Jonathan Fink
For the People:
The Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
By: Robert Zweibel
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 Defendant s 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-[*2]190.50 notice" of the Defendant's intent to testify before the
Grand Jury.[FN1]
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.[FN2]
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 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 NY2d 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 AD2d 813 [2d Dep't
1983]).
Where a violation of defendant's right to testify before the grand jury is
asserted, relief [*3]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 [*4]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.
Dated: November 17, 2014
Brooklyn, New York
_______________________
BETTY J. WILLIAMS, J. S.C.
Footnotes
Footnote 1: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.
Footnote 2:The Defendant's current
counsel is not sure if "cross-190.50 notice" was withdrawn at the criminal court
arraignment.