People v. Bailey

• Decision Date: 30 December 2011
• Citation: 935 N.Y.S.2d 822,90 A.D.3d 1664,2011 N.Y. Slip Op. 09728
• Parties: The PEOPLE of the State of New York, Respondent, v. Ralik BAILEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09728
90 A.D.3d 1664
935 N.Y.S.2d 822

The PEOPLE of the State of New York, Respondent,
v.
Ralik BAILEY, Defendant–Appellant.

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

Dec. 30, 2011.

[935 N.Y.S.2d 822]

Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for Defendant–Appellant.

Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

[90 A.D.3d 1664] On appeal from a judgment convicting him following[90 A.D.3d 1665] a nonjury trial of two counts of assault in the second degree (Penal Law § 120.05[3] ), defendant contends that he was deprived of his right to testify before the grand jury ( see CPL 190.50). We reject that contention. Approximately three months after defendant was involved in an altercation with correction officers at Attica Correctional Facility and before any criminal charges were filed against him, defendant was visited at another correctional facility by a police investigator who attempted to interview him about the altercation at Attica. Defendant told the investigator, “I have nothing to say at this time. Also at this time I request an attorney and to be present at any criminal proceedings or hearings if any take place.” An indictment was later filed against defendant, charging him with various crimes arising from the incident at Attica, including the two counts of felony assault of which he was later convicted. It is undisputed that defendant was not advised of the grand jury presentation and thus did not testify before the grand jury.

CPL 190.50(5)(a) provides a defendant with the right to testify before the grand jury “if, prior to the filing of any indictment ... in the matter, he serves upon the district attorney of the county a written notice making such request....” “In order to preserve his or her statutory pretrial

[935 N.Y.S.2d 823]

rights, including the right to testify before the [g]rand [j]ury, a defendant must assert them ‘at the time and in the manner that the Legislature prescribes' ” ( People v. Green, 187 A.D.2d 528, 589 N.Y.S.2d 916, lv. denied 81 N.Y.2d 840, 595 N.Y.S.2d 739, 611 N.E.2d 778, quoting People v. Lawrence, 64 N.Y.2d 200, 207, 485 N.Y.S.2d 233, 474 N.E.2d 593). The requirements of CPL 190.50 are to be “strictly enforced” ( People v. Madsen, 254 A.D.2d 152, 153, 681 N.Y.S.2d 6, lv. denied 92 N.Y.2d 1035, 684 N.Y.S.2d 500, 707...