People v. Davis

Decision Date18 April 2000
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>MAURICE DAVIS, Defendant.
CourtNew York Supreme Court

Joel S. Walter, P. C., Brooklyn, and Jesse A. Young, Brooklyn, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Stanley R. Irvin of counsel), for plaintiff.

OPINION OF THE COURT

CAROLYN E. DEMAREST, J.

Defendant moves pursuant to CPL 210.20 (1) to dismiss the indictment as defective under CPL 210.35 (4) alleging that he was denied his rights under CPL 190.50 to testify before the Grand Jury.

FACTS

Defendant was arrested on July 23, 1999, and charged in a felony complaint with murder in the first degree under Penal Law § 125.27 (1) (a) (vii) (in the course of a robbery) and murder in the second degree under Penal Law § 125.25 (1) (intentional) and criminal possession of a weapon in the second and third degrees. He was arraigned on the felony complaint on July 24, 1999, in Part AR4 in Criminal Court and was assigned counsel, Joel S. Walter, P. C., pursuant to Judiciary Law § 35-b. Jesse A. Young, Esq. was subsequently appointed associate counsel nunc pro tunc. The case was adjourned to July 28 in AP 1, at which time oral cross CPL 190.50 notice was given.

On July 30, 1999, Mr. Young noted by fax the oral agreement of Assistant District Attorney (ADA) Irvin to provide the autopsy report and DD5's, but indicated they had not yet been received. On August 3, Mr. Young served written CPL 190.50 notice, together with letters dated August 2 addressed to ADA Stanley R. Irvin containing defendant's waiver of his CPL 180.80 right to release, requests for notice of the charges, a stay of Grand Jury proceedings, disclosure of exculpatory and mitigating evidence and proposed Grand Jury instructions. The letters essentially sought virtually all the evidence to which defendant would be entitled pursuant to CPL article 240 following indictment, but, according to the defense, the demand was not for statutory discovery but was "constitutionally based" pursuant to Brady v Maryland (373 US 83 [1963]). Defendant also requested that "rulings" on his demands be made "sufficiently in advance of the presentation" to permit counsel to advise the defendant whether to testify. These letters were copied to Criminal Court Judge Jerome M. Kay in AP 1.

On August 9,[1] the parties appeared in Criminal Court Part APF-1 before the Honorable Howard Ruditzky. ADA Roland Klengler appeared for the prosecution and both Mr. Walter and Mr. Young appeared for defendant. The defense waived CPL 180.80 "for all purposes for whatever period it is" in order to obtain compliance with the aforementioned letters which were filed with the court. Mr. Young reiterated his demands for "the statutory aggravators" and "some Brady * * * having to do with hits, miss hits, having to do with lineups" in order to present such evidence to the Grand Jury (transcript, at 3-4). The CPL 190.50 notice of intent to testify was reasserted, whereupon the following exchange took place (transcript, at 5-6):

"The Court: You want me to extend 180.80 and instruct the People to give you whatever materials you're entitled to, [sic] I don't have to instruct them, [sic] they know that under the law if you don't get it, you make that application in writing.

"Mr. Walter: We already have, Judge.

"Mr. Young: Yes. In the case law both the New York and Federal Constitution cite as well as the various cases in the series of three letters.

"The Court: What date are we adjourning 180.80? 180.80 is extended.

"Mr. Walter: September 2nd, Judge.

"The Court: To 9/2/99, case adjourned to 9/2/99, for Grand Jury action and for People to comply with defendant's requests stated in written letter or respond or provide written response and decision here. You have plenty of time, [sic] I think that's the way to do it.

"Mr. Young: Thank you Judge.

"The Court: Any problems, contact my chambers on notice to the other side. The case is adjourned to AP-1, 9/2/99. It's remand; is that correct?

"Mr. Walter: That's correct.

"The Court: Remand continued. You'll be in touch with my chambers if you have any problems.

"Mr. Walter: Thank you, your Honor." (Emphasis added.)

On August 11, ADA Stanley Irvin advised the defense attorneys by letter that they had failed to appear for defendant's previously scheduled Grand Jury testimony on August 10 and that such testimony had been rescheduled for August 12 at 2:00 P.M. The letter cautioned that defendant's failure to exercise his right to testify at that time would be deemed a withdrawal of his notice, and that since the Grand Jury would expire on August 13, the case would be voted on the 12th or 13th. The letter further advised that the only known Brady or exculpatory evidence was a photographic identification by one witness of a David Sumter as the shooter which was subsequently revoked at the lineup. That same witness later identified defendant at a lineup. Notice was also given that a second witness had also selected the photograph of David Sumter as the shooter. In his "Response" to the instant motion, Mr. Irvin contends this was sufficient information under Brady, although the defense was not provided with the identities of the witnesses who made the "misidentifications." In the Grand Jury presentation, the witness who identified defendant at the lineup was questioned regarding the prior erroneous identification of someone other than defendant Maurice Davis.

In response to Mr. Irvin's letter, on August 12, Mr. Young reaffirmed by written notice his client's intent to testify, accompanied by a letter addressed to "ADA Stanley R. Irvin, Homicide Bureau," in which he again stated his view that the Constitution entitled his client to "heightened due process" in the circumstances and recited the direction of "the Honorable Judge Howard A. Ruditsky [sic], in Kings County, Criminal Court, Part AP 1 * * * to comply with our requests enumerated in 3 letters dated August 2, 1999," noting further that an extension had been granted "for the People to comply with our requests and/or to file a written answer." The Criminal Court felony complaint record of court action for August 9 bears the endorsement: "Case adj t 9/2/99 for GJA & for comply with D requests stated in written letter or provide written response in opposition."

Because a witness could not be produced prior to the expiration of the first Grand Jury which had begun hearing evidence on July 27 (but not, apparently, to accommodate the request of the defendant to delay Grand Jury proceedings or withdraw any presentation that might have been commenced), the case was withdrawn on August 13 and a second presentation was commenced on September 24. That presentation was continued over a period of nearly three months in an effort to provide testimony, at the request of the Grand Jury, from an eyewitness to the shooting who could not be located. At oral argument on April 11, 2000, defense counsel Young acknowledged that during this period he was aware the matter was before the Grand Jury but did not know that a second presentation had been commenced. He also indicated that he believed there were charges pending involving two separate homicides.

Well before the vote in mid-December, on November 4, Mr. Young again faxed to ADA Stanley R. Irvin (and copied to the Honorable Justice Michael R. Juviler) a "Re-affirmation of Notice of Intent to Exercise Rights Pursuant to CPL § 190.50," together with a copy of his August 12 letter to Mr. Irvin reciting Judge Ruditzky's direction of August 9. The August 12 letter further articulated defendant's Brady demands for the names, addresses and phone numbers of the eyewitnesses who had made the photographic identification of David Sumter (to remain confidential to counsel), the address and phone number of David Sumter (also to remain confidential to counsel), a copy of the photograph of Sumter and the lineup photos for Sumter and copies of all DD5's containing statements of those eyewitnesses who identified David Sumter. Mr. Young indicated that the People had failed to comply with the court's order and that defendant could not, therefore, exercise his rights pursuant to CPL 190.50 and 190.52 at that time. Reaffirming his right to testify and his CPL 180.80 waiver, and noting that the court had granted an extension to September 2, Mr. Young asserted that defendant had not been afforded a reasonable opportunity to appear as a witness in the Grand Jury. There was no reply to defense counsel's November 4 fax.

In response to a letter from ADA Irvin dated December 1, 1999, advising defense counsel that Mr. Davis would be produced on December 6 to testify and that counsel's failure to appear at 2:00 P.M. would be considered a waiver of the CPL 190.50 assertion, and further cautioning that the case would then be "voted out," on December 6, Mr. Young again reaffirmed his CPL 190.50 notice, together with yet another copy of the August 12 letter, indicating noncompliance by the People.

It is undisputed that defense counsel did not appear on four occasions on which defendant's Grand Jury testimony had been scheduled. It is not clear whether defendant was actually produced on August 10, but on that date and on August 12, December 6, and December 13, defense counsel simply did not show up. In his "Response" to the motion, the District Attorney expresses his indignation that defense counsel failed to contact him regarding "problems" with times or dates. However, it is clear from the letter of August 12, reiterated in the faxes of November 4 and December 6, that defendant had taken the position that more information was due him pursuant to the order of Judge Ruditzky than had been provided and that it was the District Attorney's burden to act if relief from that order was required.

On December 9, Mr. Irvin sent another letter to defense counsel indicating that defendant would again be produced in the Grand Jury at 10:00 A.M. on December 13. In that...

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