People v. Butterfield
| Decision Date | 30 December 1999 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ROSS BUTTERFIELD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mikoll, J. P.
This appeal presents a question of first impression relating to the timeliness of a defense request pursuant to CPL 190.50 (6) that the Grand Jury hear the testimony of a witness designated by defendant.
Defendant was arrested and charged with driving while intoxicated and aggravated unlicenced operation of a motor vehicle on May 23, 1996 in the Town of Oswegatchie, St. Lawrence County. On or about October 23, 1996, the District Attorney notified defendant that his case would be presented to the Grand Jury on November 7, 1996. This notice also stated that "in the event said defendant desires to make an appearance as a witness before said Grand Jury for the purpose of presenting testimony or other evidence, defendant should, prior to the date specified above, serve upon the undersigned a written notice requesting an opportunity to appear before said Grand Jury."
By letter from his counsel dated October 7, 1996 [sic],[1] defendant requested that the Grand Jury subpoena and hear the testimony of his brother, Tony Butterfield, who possessed relevant information concerning the offense with which defendant had been charged. As evidenced by an affidavit of service from Teresa Taylor, this notice was hand delivered to Sheila Friedel, confidential secretary to the District Attorney, at his office at 4:30 P.M. on November 6, 1996. However, the Grand Jury was not apprised of defendant's request, and on November 19, 1996, an indictment was filed against defendant.
After arraignment, defendant filed an omnibus motion seeking, inter alia, dismissal pursuant to CPL 210.35 (5) on the ground that the Grand Jury proceeding was rendered defective by virtue of the denial of his right to request the Grand Jury to call for the testimony of his brother. The People's response averred that defendant's request was not received until the "late morning" of November 7, 1996, after the case was presented and an indictment voted. The People tendered as evidence thereof a copy of defense counsel's letter bearing the District Attorney's date stamp marked "received November 7, 1996". The People's response did not include an affidavit from either Sheila Friedel, the person to whom the request was ostensibly hand delivered on November 6, 1996, or from any other individual with specific knowledge as to the date, time and circumstances under which the request was received. County Court denied defendant's motion, holding that his request, whether it was received in the late afternoon of November 6, 1996 or the morning of November 7, 1996, was untimely in that it was not given within a reasonable time in advance of the presentment date.
Noting the absence of any statutory provision relative to the timing of a request pursuant to CPL 190.50 (6), County Court reasoned that advance notice was required to enable the prosecutor to apprise the Grand Jury of the request and for the Grand Jury to consider same, concluding that, "In order to avoid wasteful disruption of the Grand Jury proceedings it is important that such a request be made as far in advance of the commencement of the proceedings as possible." Defendant was thereafter convicted as charged following a jury trial and this appeal ensued.
We note at the outset that in contrast to the clear statutory and decisional authority pertaining to a defendant's absolute right to present his own testimony before the Grand Jury and the timing within which such right may be asserted, i.e., "prior to the filing of any indictment" (CPL 190.50 [5] [a]; People v Evans, 79 NY2d 407), CPL 190.50 (6) speaks only of a defendant's right to request that the Grand Jury hear a witness designated by him and vests the Grand Jury with discretion regarding whether to accede to this request. The statute does not specify any time frame within which such a request must be made. The People argue that since defendant has no absolute right to the production of defense testimony under CPL 190.50 (6), his right to request such testimony "differs significantly" from his absolute right to testify on his own behalf pursuant to CPL 190.50 (5) (a).
While acknowledging that the two rights differ, we cannot accept the specious argument that because a defendant's request may be ultimately denied, his right to make it need not be protected. That the Grand Jury in this case may have, in the exercise of its discretion, chosen not to call defendant's brother has no bearing upon whether his right to have the Grand Jury consider his request was denied. Likewise, that the Grand Jury may have still voted to indict defendant even had it chosen to hear the testimony of his brother is of no moment. Indeed, County Court, previously addressing this same issue (upon what it found to have been a timely request), held that a prosecutor's failure to inform the Grand Jury of the defense request rendered the Grand Jury proceedings flawed and invalidated the resulting indictment (see, People v Montagnino, 171 Misc 2d 626).
The question thus distills to whether County Court properly determined that defendant's request was untimely. While we would otherwise disagree with County Court's view that it was unnecessary to resolve the factual dispute as to when defendant's request was received by the prosecutor,[2] this disagreement becomes academic given the People's position that even assuming defendant's request was received the afternoon preceding the scheduled presentment date, it was nonetheless untimely given the claimed need for an unspecified period of "advance notice."
Our difficulty with the People's position, and with the result reached by County Court, is that it engrafts upon the statute, silent on the question of timing, a requirement of "advance notice" that is justifiable neither by virtue of mirroring a corresponding requirement imposed with respect to a defendant's rights under ...
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