People v. Costas

• Decision Date: 09 March 1998
• Citation: 670 N.Y.S.2d 197,248 A.D.2d 482
• Parties: , 1998 N.Y. Slip Op. 2031 The PEOPLE, etc., Respondent, v. Jose COSTAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

670 N.Y.S.2d 197

248 A.D.2d 482, 1998 N.Y. Slip Op. 2031

The PEOPLE, etc., Respondent, v. Jose COSTAS, Appellant.

Supreme Court, Appellate Division Second Department.

March 9, 1998.

Lynn W.L. Fahey, New York City (Barry Stendig, of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Cheryl Hone, David A. Strauss, and Neil Fenton, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lisa, J.), rendered September 12, 1995, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322); and it is further,

ORDERED that upon service upon him of a copy of this decision and order, with notice of entry, the official having custody of the defendant's person is directed to produce him, forthwith, before the Supreme Court, Queens County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the New York City Department of Corrections pending resubmission of the case to a Grand Jury and the Grand Jury's disposition thereof. Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to a Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Queens County, to a designated subsequent date if such be necessary to accord the People a reasonable opportunity to resubmit the case to a Grand Jury.

At his arraignment the defendant handed his appointed counsel a pro se motion to dismiss the indictment, pursuant to CPL 190.50(5)(c), on the ground that he had been denied his right to testify before the Grand Jury. The motion alleged, inter alia, that the People had been served with written notice of the defendant's intention to testify before the Grand Jury, and that he was not produced in court until after the People had already obtained an indictment. The defense attorney handed the motion to the court which then remarked, "I will put in the file [and] [i]t will be referred to the trial part where whatever...