People v. Bey-Allah, BEY-ALLA

• Decision Date: 03 December 1987
• Docket Number: BEY-ALLA,D
• Citation: 521 N.Y.S.2d 422,132 A.D.2d 76
• Parties: The PEOPLE of the State of New York, Respondent, v. Ralimefendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 422

521 N.Y.S.2d 422

132 A.D.2d 76

The PEOPLE of the State of New York, Respondent, v. Ralim BEY-ALLAH, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 3, 1987.

Arnold S. Cohen, of counsel (Caesar D. Cirigliano, New York City, attorney) for defendant-appellant.

Marc Frazier Scholl, of counsel (Robert M. Pitler with him on the brief, Robert M. Morgenthau, New York City, attorney) for respondent.

Before SANDLER, J.P., and SULLIVAN, ROSS, MILONAS and WALLACH, JJ.

ROSS, Justice.

This appeal presents us with the issue of whether an indictment must be dismissed, when a defendant, arraigned in a local criminal court, upon an undisposed of felony complaint, serves on the District Attorney, pursuant to Criminal Procedure Law (CPL) § 190.50, subdivision 5(a), prior to the commencement of Grand Jury proceedings, a timely notice of an intention to testify before such Grand Jury, and the District Attorney delays his notice to the defendant of the time to testify until after the Grand Jury has voted an indictment against defendant, but before it has been filed. We find this to be an appellate issue of first impression in this State.

On January 5, 1985, at approximately 8:15 P.M., New York City Housing Police Detective Sidney Desjardin (Detective Desjardin) arrested the defendant, in the lobby of 2698 Eighth Avenue, which is an apartment building in New York County, for the crimes of Criminal Possession of a Weapon in the Third Degree (Penal Law (PL) § 265.02), to wit: a loaded .25 caliber automatic pistol, and, of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), to wit: what appeared to be a quantity of cocaine.

Following this arrest, a felony complaint (complaint), dated January 6, 1985, was prepared, and sworn to by Detective Desjardin.

Upon the basis of the filing of this complaint, on January 7, 1985, defendant was arraigned in Criminal Court, New York County. At this arraignment, an Assistant District Attorney (ADA) informed the defendant and his counsel that the matter would be presented to a Grand Jury. It is undisputed by the People that the defendant, through his counsel, pursuant to CPL § 190.50, subdivision 5(a), served the ADA with a timely written notice of defendant's intention to appear and testify before that Grand Jury (Defendant's Appellant's Appendix (A) at 99-102).

CPL § 190.50, subdivision 5(a) reads, in pertinent part:

"5. Although not called as a witness by the People or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision:

(a) When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment ..., he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent ... [or, when] such person is a defendant who 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 ... grand jury proceeding. In such case, the district attorney must notify the defendant or his attorney of the prospective ... grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein ..." [material in brackets added].

Our examination of CPL § 190.50, subdivision 5(a), indicates that the crystal clear objective of this Statute is to insure that the District Attorney does not deprive a defendant of an opportunity to testify before a Grand Jury by failing to give timely notice to the defendant of when he or she is to appear (People v. Otello, 48 A.D.2d 169, 170, 368 N.Y.S.2d 592 (1975)).

The arraignment concluded with defendant's incarceration, in lieu of posting $2,500.00 bail, and the case was adjourned to January 11, 1985, in order for the ADA to take action on the complaint.

Thereafter, the People, without giving the required notice to the defendant, or his counsel, of the prospective grand jury proceeding or affording "the defendant a reasonable time to exercise his right to appear as a witness therein ..." (CPL § 190.50, subdivision 5(a), supra ), presented this matter to a New York County Grand Jury on the morning of January 10, 1985. This Grand Jury, without hearing defendant, voted to indict defendant, and charge him with the crime of Criminal Possession of a Weapon in the Third Degree. Later that day, defendant's counsel telephoned the office of the ADA, for the purpose of ascertaining whether a Grand Jury hearing date had been scheduled for defendant's testimony. In response, the ADA, as set forth in an affirmation (A 10-12), admitted, in pertinent part: "[I] informed counsel for the defendant of the fact that a morning Grand Jury had heard evidence in this case and voted an indictment ... [I] also indicated to counsel for defendant that ... [I] was willing to honor the defendant's grand jury notice and would be willing to re-open the case before the Grand Jury to allow the defendant an opportunity to testify ..." [material in brackets added]. In other words, the ADA was offering the defendant an opportunity to testify before a Grand Jury that had already heard the People's evidence, determined it to be credible, and voted to indict defendant. We find that this choice offered by the ADA to the defendant does "not comport with traditional concepts of fair play and should not be used by a prosecutor" (People v. Reynolds, Jr., 35 A.D.2d 529, 530, 313 N.Y.S.2d 223 (1970)). Significantly, the People, at page 14 of their respondent's brief, state, in pertinent part, "it would have been better to afford the opportunity to testify before a vote is taken ...".

As mentioned supra, at defendant's arraignment on January 7, 1985, the matter was adjourned to January 11, 1985. On January 11th, the defendant posted bail, and was released from custody. Also, at this scheduled Court appearance date of January 11th, defendant appeared with his counsel in Part AP-7 of the New York City Criminal Court. At that time, the ADA, who was handling the case against defendant, informed (A104-105) the Court that the Grand Jury had voted to indict the defendant; but, that the indictment had not been filed, since "the defendant may wish to testify before the Grand Jury ...". In view of the fact that the People acknowledged defendant was not given an opportunity to testify before the Grand Jury, prior to the Grand Jury's vote to indict defendant, the defense counsel stated (A-105) to the Court, in pertinent part, "It's my position that the indictment is defective. The case ... [was] presented, a vote already taken. Whether or not the indictment is filed is really immaterial. As far as I can see, it is my intention to move to dismiss the indictment and have the case re-presented ..." [material in brackets added]. Based upon defense counsel's statement supra, the defendant refused to testify before the Grand Jury, which had already voted to indict him.

Thereafter, on January 25, 1985, the defendant was arraigned on the one-count indictment that had been voted against him, and which had been subsequently filed. As mentioned supra, this indictment charged him with the crime of Criminal Possession of a Weapon in the Third Degree.

Within four days after defendant's arraignment, on January 29, 1985, defense counsel moved for an order dismissing the indictment as defective, pursuant to CPL §§ 210.20, subdivision 1(c) and 210.35, subdivision 4, since allegedly the defendant was denied his statutory right to testify before the Grand Jury, in accordance with CPL § 190.50, subdivision 5(a), which was discussed supra. Section 210.20, subdivision 1(c), states, in substance, that, after arraignment based upon indictment, a superior court, such as the Supreme Court, may, on defendant's motion, dismiss the indictment "upon the ground that ... (c) [t]he grand jury proceeding was defective within the meaning of section 210.35 ..." [material in brackets added]. In pertinent part, § 210.35, subdivision 4, states a Grand Jury proceeding is defective when "[t]he defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50" [material in brackets added]. Even though in their reply to the motion to dismiss, the People admitted (All) they ignored defendant's request to testify, when they presented the matter to the Grand Jury, and the Grand Jury voted to indict, without defendant being given an opportunity to be heard, they nevertheless contended (A12), in substance, that defendant's motion should be denied, since the defendant's statutory right to testify was allegedly preserved by the People's offer to permit defendant to testify, after the Grand Jury voted to indict, but before the indictment had been formally filed.

Our examination of the record indicates that defendant's motion to dismiss was timely brought within the statutory time period of CPL § 190.50, subdivision 5(c), which requires that the motion be made no more than five days after defendant's arraignment "upon the indictment ...".

On February 7th, Criminal Term denied defendant's motion to dismiss the indictment; and, on March 18th, Criminal Term denied defendant's motion to reargue that motion.

Subsequently, on April 3rd, Criminal Term denied, without an evidentiary hearing, defendant's motion to suppress the weapon.

On July 9, 1985, defendant's trial commenced; and, thereafter, on July 12, 1985, defendant was convicted by the jury of the crime of Criminal Possession of a Weapon in the Third Degree. Following his conviction, on January 29, 1986, the defendant...