People v. Calate

• Decision Date: 17 August 1998
• Citation: 678 N.Y.S.2d 861,178 Misc.2d 190
• Parties: , 1998 N.Y. Slip Op. 98,534 The PEOPLE of the State of New York, Plaintiff, v. Reuben CALATE, Defendant.
• Court: New York Supreme Court

Page 861

678 N.Y.S.2d 861

178 Misc.2d 190, 1998 N.Y. Slip Op. 98,534

The PEOPLE of the State of New York, Plaintiff, v. Reuben CALATE, Defendant.

Supreme Court, Bronx County.

Aug. 17, 1998.

Julius DiFiore, for defendant.

Robert T. Johnson, District Attorney of Bronx County (Pasquale Vairo, of counsel), for plaintiff.

JOSEPH FISCH, Justice.

Defendant, arrested under the name of Reuben Calate, but who maintains that he properly identified himself to the police under his true name, Reuben Escalante, moves to dismiss the indictment, pursuant to Criminal Procedure Law sections 190.50, 210.30, and 210.35, alleging that the People impinged on his right to testify in the Grand Jury. For the reasons that follow, defendant's motion is GRANTED, with leave to re-present to a different Grand Jury panel, if so advised.

FINDINGS OF FACTS

Defendant was indicted by a true bill filed on June 19, 1998, charging him with Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree.

The indictment was based on a presentation made on June 4 through June 9, 1998, and the Court has reviewed the transcript of such Grand Jury proceedings. The People do not dispute defendant's factual contentions that throughout his appearance before the Grand Jury he was shackled at the hands and feet. The District Attorney's Grand Jury coordinator, as well as the court officers who accompanied the defendant from the holding area, informed defense counsel that because of the defendant's status as a "red card," ¹ so identified by the Department of Corrections ("Corrections"), he would remain shackled when he appeared to testify before the Grand Jury. Defense counsel was also advised that this procedure was not negotiable. Accordingly, in order for the defendant to exercise his right to appear before the Grand Jury and give testimony on his own behalf, the defendant had no alternative but to appear before the Grand Jury, so shackled.

The defendant, in his Grand Jury testimony, denied that he was involved in the drug transaction alleged by the People. He alleged that he was innocent of any wrongdoing and was standing in front of a barber shop when arrested. The prosecutor sought to disparage the defendant's credibility, and his entire charge to the Grand Jury centered on the critical role that it must play in weighing "his credibility, i.e., his believability as a witness." At no time did the prosecutor give curative instructions regarding the fact that defendant was heavily shackled.

THE LAW

Although not cited by the parties, the leading case in New York is People v. Felder, 201 A.D.2d 884, 885, 607 N.Y.S.2d 793 (4th Dept.), appeal denied, 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301 (1994). In Felder, the Appellate Division stated:

We agree with defendant that it was error to require him to appear before the Grand jury in handcuffs. It is well settled that a criminal defendant may not be physically restrained in the presence of a jury unless there is a rational basis, articulated on the record, for the restraint (see, People ex rel. Washington v. Johnson, 79 N.Y.2d 934, 935, 583 N.Y.S.2d 184, 592 N.E.2d 792; People v. Mendola, 2 N.Y.2d 270, 275, 159 N.Y.S.2d 473, 140 N.E.2d 353) or "it is clear that the jury was not prejudiced thereby" (People v. Thomas, 125 A.D.2d 873, 874, 510 N.Y.S.2d 460; see, People v. Mendola, supra, at 275, 159 N.Y.S.2d 473, 140 N.E.2d 353). The record contains no facts to justify the restraint of defendant with handcuffs.

Felder, 201 A.D.2d at 885, 607 N.Y.S.2d 793. See generally, People v. Greiner, 156 A.D.2d 813, 817, 549 N.Y.S.2d 831 (3d Dept.1989), appeal denied, 75 N.Y.2d 919, 555 N.Y.S.2d 38, 554 N.E.2d 75 (1990); State. v. Schroeder, 62 Or.App. 331, 336-339, 661 P.2d 111, 116-117, review denied, 295 Or. 161, 668 P.2d 380 (1983). But see, People v. Hilliard, 142 A.D.2d 885, 886-887, 531 N.Y.S.2d 386 (3d Dept.1988) (not error for defendant testifying before Grand Jury to be shacked), rev'd on other grounds, 73 N.Y.2d 584, 542 N.Y.S.2d 507, 540 N.E.2d 702 (1989).

In Felder, the court concluded that reversal was not required because the prosecutor twice gave cautionary instructions to the Grand Jury, dispelling any prejudice. In the present case, the prosecutor failed to give any curative instruction regarding the shackles, thereby allowing the grand jury to draw the worst inferences about defendant in a case where the issue of credibility between defendant and the police was critical.

On this motion, the prosecutor argues that because Corrections labeled the defendant with a "red card," identifying him as a prior weapon possessor, there was no choice...