People v. Abussalam

• Decision Date: 29 July 2021
• Docket Number: 110542
• Citation: 151 N.Y.S.3d 743,196 A.D.3d 1000
• Parties: The PEOPLE of the State of New York, Respondent, v. Saifur R. ABUSSALAM, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 1000
151 N.Y.S.3d 743

The PEOPLE of the State of New York, Respondent,
v.
Saifur R. ABUSSALAM, Appellant.

110542

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 3, 2021
Decided and Entered: July 29, 2021

151 N.Y.S.3d 747

Adam H. Van Buskirk, Auburn, for appellant, and appellant pro se.

Michael A. Korchak, District Attorney, Binghamton (Eric H. Gartenman of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

151 N.Y.S.3d 748

196 A.D.3d 1001

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered August 17, 2018, upon a verdict convicting defendant of the crime of attempted assault in the first degree.

On the morning of July 30, 2017, residents of an apartment complex in the City of Binghamton, Broome County called 911 after hearing a woman calling for help. Police officers responded and observed blood on the exterior staircase at the rear of the building and on a porch extending from a rear first-floor apartment. Eventually, the police searched a first-floor apartment and found defendant and the victim, the latter of whom was bleeding from an injury to her forehead. Defendant was detained at the scene while the victim was transported to the hospital, where she was treated for four fractured ribs, a punctured lung, a fractured eye socket, a laceration to her forehead and bruising on her neck, back, arms and wrist. During a police interview at the hospital, the victim reported that defendant hit her with his fist. Three days later, the victim provided a more detailed statement regarding the incident, in which she alleged that defendant hit her with a rock and the shaft of a golf club.

Defendant was subsequently charged by indictment with one count of assault in the first degree. After a jury trial, defendant was convicted of the lesser included offense of attempted assault in the first degree. County Court sentenced defendant to a prison term of 13 years, followed by five years of postrelease supervision. Defendant appeals.

Initially, defendant contends that County Court erred in denying his motion to dismiss the indictment as duplicitous because the indictment was based on defendant striking the

196 A.D.3d 1002

victim with both a rock and a golf club, resulting in two distinct injuries. We disagree. CPL 200.30(1) provides that each count of an indictment may charge only one offense. As such, "a count is duplicitous when it charges more than one crime that is completed by a discrete act in the same count" ( People v. Kalabakas, 183 A.D.3d 1133, 1136, 124 N.Y.S.3d 448 [2020] [internal quotation marks and citation omitted], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ). However, "[a]s a general rule[,] it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he [or she] commits but a single crime" ( People v. Flanders, 25 N.Y.3d 997, 1000, 10 N.Y.S.3d 169, 32 N.E.3d 384 [2015] [internal quotation marks, ellipsis and citation omitted]).

As relevant here, the indictment charged that defendant, "with intent to cause serious physical injury to another person, did cause such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." In response to defendant's demand for a bill of particulars, the People particularized the allegations as follows: defendant "did physically assault [the victim] by striking her in her face with a rock or piece of broken concrete, causing serious physical injury to her face. In addition, at the same date, time and location ... defendant ... did strike [the victim] with a golf club shaft on her back and sides causing her serious physical injury." This assault, in our view, consisted of multiple

151 N.Y.S.3d 749

acts perpetrated against the victim as part of a continuous course of conduct – over a short period of time – and was triggered by a single incident of anger. As defendant's actions – striking the victim in the face with a rock and then striking the victim's back and sides with a golf club shaft as she attempted to flee – constituted an uninterrupted course of conduct directed at a single person, the indictment was not duplicitous (see People v. Flanders, 25 N.Y.3d at 1000, 10 N.Y.S.3d 169, 32 N.E.3d 384 ; People v. Wells, 141 A.D.3d 1013, 1015, 35 N.Y.S.3d 795 [2016], lvs denied 28 N.Y.3d 1183, 1189, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; People v. Hines, 39 A.D.3d 968, 969–970, 833 N.Y.S.2d 721 [2007], lv denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755 [2007] ).

Defendant also contends that County Court erred in denying his pretrial motion to dismiss the indictment pursuant to CPL 190.50(5)(a) upon the ground that he was not given a reasonable amount of time prior to the grand jury proceeding to consult with counsel as to whether he should testify. "Where, as here, a defendant has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding, the [People] must notify the defendant or his or her attorney of the prospective or pending grand jury

196 A.D.3d 1003

proceeding and accord the defendant a reasonable time to exercise his or her right to appear as a witness therein" ( People v. Wilkerson, 140 A.D.3d 1297, 1299, 33 N.Y.S.3d 523 [2016] [internal quotation marks, brackets, ellipses and citations omitted], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; see People v. Graham, 185 A.D.3d 1221, 1222, 127 N.Y.S.3d 647 [2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 332, 159 N.E.3d 1099 [2020] ). "The statute does not mandate a specific time period for notice; rather reasonable time must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a grand jury" ( People v. Clark, 182 A.D.3d 703, 704, 120 N.Y.S.3d 646 [2020] [internal quotations marks, brackets and citation omitted]). In this context, "[t]he concept of reasonableness is flexible and must be applied to the particular facts of a case as known at the time" ( People v. Gannon, 174 A.D.3d 1054, 1056, 104 N.Y.S.3d 770 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 632, 137 N.E.3d 2 [2019] ).

Defendant was arraigned on a felony complaint charging assault in the second degree and assault in the third degree in July 2017 and initially was assigned counsel from the Broome County Public Defender's office. On or about August 3, 2017, the People sent a grand jury notice to counsel's office and the Broome County jail, where defendant was being detained, stating that the case would be presented to a grand jury on August 8, 2017. In response, the Assistant Public Defender provided the People with certain waivers, a plea offer was made and the case was removed from the grand jury term. When it appeared that defendant was not going to accept the plea, a second grand jury notice was sent to counsel and defendant informing them that the case would be presented to the grand jury on September 6, 2017. In the interim, defendant was assigned new counsel. It is undisputed that the newly assigned counsel promptly received this second notice.

On September 6, 2017, defendant appeared for the grand jury proceeding and stated that, although he would testify, he would not sign a waiver of immunity. The parties appeared before County Court the following day, whereupon defendant's counsel was released from representing him. County Court agreed to assign new

151 N.Y.S.3d 750

counsel, but cautioned the People that if new counsel was not assigned quickly enough, the matter would have to be re-presented to the grand jury or the term extended to afford defendant adequate time to meet with counsel and make an informed decision as to whether he would testify. New counsel met with defendant within five hours of said appearance, and again the following day, and thereafter advised the People that defendant wished to testify before the

196 A.D.3d 1004

grand jury. When defendant appeared at the grand jury proceeding on September 8, 2017, he confirmed that he had an opportunity to discuss testifying with counsel but stated that he did not have sufficient time to review his case with counsel. The People thereafter informed the grand jury that defendant was not going to testify and proceeded to provide an instruction that no unfavorable inference could be drawn from his decision. The People presented the case and secured the underlying indictment charging assault in the first degree.

The record demonstrates that defendant had a reasonable period of time to consult with counsel prior to and during the grand jury proceeding, and in fact was afforded an opportunity to consult with more than...