People v. Callaway
| Decision Date | 05 April 1984 |
| Parties | The PEOPLE of the State of New York, v. William CALLAWAY, Defendant. |
| Court | New York County Court |
The Court conducted a hearing of this matter as scheduled pursuant to this Court's prior order, dated March 1, 1984. As to the issue of failure to accord the defendant an opportunity to appear before the Grand Jury to give evidence in his own behalf pursuant to Section 190.50(5)(a), this Court is compelled by the statute in question to dismiss the indictment, conditionally. The statute clearly states "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..."
This Court adheres to its original determination that the statute permits a defendant to testify even after a criminal charge has been submitted to a Grand Jury but prior to the filing of any indictment if the defendant promptly notifies the District Attorney of such a desire. That is precisely what occurred in the instant case. Therefore it is apparent that the provisions of CPL 190.50 (subd. 5, par. [a] and [b] ) have been violated in that the defendant was improperly denied his right to appear before the Grand Jury.
As to this Court's inquiry into a potential additional ground for dismissal pursuant to CPL § 210.20 (subd. 1) (h), that is, that there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged, the Court concludes the following. This Court's concern centers around CPL § 170.20 (subd. 2) which provides for removal from the local criminal court to a superior court of a pending case at the District Attorney's instance, by proper application, upon the ground that he intends to present the misdemeanor charge in question to a Grand Jury for prosecution by indictment in the superior court.
"When a District Attorney applies for such an adjournment to present the misdemeanor charges and perhaps felony charges arising from the same incident, to the Grand Jury, the local criminal court is mandated to grant the adjournment (citations omitted)" People v. Butor, 75 Misc.2d 558, 348 N.Y.S.2d 89. The hearing confirmed the following: The matter was originally pursued via felony complaints. At the August 19, 1983 felony examination date, the matters were reduced to misdemeanors and prosecuted as such in the First District Court, until the December 1, 1983 indictment hand-up. At the last District Court appearance date, November 11, 1983, no notice of presentment to the Grand Jury was ever entertained before that Court. No request pursuant to CPL 170.20 (subd. 2) was ever requested in the local criminal court. The District Attorney argues that no such request is necessary, claiming legal authority to act as he did can be found in CPL 170.20 (subd. 1). The People believe that the application of subd. 2 of the statute is limited to matters in the local criminal court which are on the eve of trial or to forestall a defendant from pleading guilty to a charge in a misdemeanor complaint who seeks to take advantage of a fortuitous circumstance which resulted from an inadequate initial assessment, on the part of law enforcement officials, of the extent of defendant's wrongdoing. (See People v. Barkin, 49 N.Y.2d 901, 428 N.Y.S.2d 192, 405 N.E.2d 674). The People allege such to be the practice by the District Attorney's office in this county. However, this Court can find no such limited conditions imposed or implicit in the language of the statute itself or in prior decisional interpretations of said statute. It appears to this Court that the two subdivisions must be read as a whole, the second subdivision is, in effect, the procedural outline for the general principle enunciated in subdivision one. This seems apparent by the actual language of subd. 2 which makes specific reference to subd. 1.
This Court has found numerous decisions dealing with various other aspects of the operation of this statute but not one with the fact pattern as detailed above. For instance, in People v. Nizza, 92 Misc.2d 823, 402 N.Y.S.2d 95, a misdemeanor complaint was dismissed as an exercise of the Court's calendar control function. It was then presented to the Grand Jury from which a prosecutor information was filed. The Court held that:
"Neither the District Attorney's initial action under the constraint of the immediate situation, nor his failure to advise the defendant of his intent to present the case to the Grand Jury [cf. CPL Section 190.50, subd. 5(a) ], affected the prosecution's legal power to proceed to the Grand Jury [See Matter of Krum v. Hogan, 69 Misc.2d 656, 330 N.Y.S.2d 680] ... Since the misdemeanor complaint was dismissed before the defendant was placed in jeopardy, the prosecutor had the right to present the case to the Grand Jury without the permission of this Court, which approval perhaps would have been required if that complaint had still been extant at the time [CPL Section 170.20; see People v. Di Marco, et al, 19 A.D.2d 150, 241 N.Y.S.2d 526; People v. Morgan, 90 Misc.2d 416, 395 N.Y.S.2d 363].
The above dicta in the Nizza decision is the issue before this Court, i.e. is there a jurisdictional or legal impediment to this indictment due to the failure of the People to seek a CPL § 170.20 adjournment--was the Grand Jury divested of power to indict?
This Court's belief as to the proper application of the statute, that is, the People must request an (Section 170.20) adjournment in the local criminal court before presentment to the Grand Jury, was approved in People v. Butor, supra., (which dealt with extended delays in presentment after making a Section 170.20 request); in People v. Barkin, supra, where the Section 170.20 request forestalled a defendant's guilty plea to a misdemeanor, where the District Attorney opposed the acceptance of the plea; in People v. Hale, 119 Misc.2d 499, 463 N.Y.S.2d 669, where a Section 170.20 request did not forestall a guilty plea to a misdemeanor where the District Attorney consented to the plea being entered; in People v. Bachety, 112 Misc.2d 957, 447 N.Y.S.2d 847, a case of some similarity, where upon a pending misdemeanor information, the People requested a adjournment to present a felony charge to the Grand Jury. The Court concluded:
This Court agrees with the above, once the request for the adjournment is made in the lower court. This same rational for requesting adjournments to present a felony charge to the Grand Jury has previously been followed by this District Attorney's office in People v. Morgan, 90 Misc.2d 416, 395 N.Y.S.2d 363.
Numerous cases, like the previous case involved a dismissal or the original charge and then a subsequent prosecution.
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