People v. Dawkins, 2

• Decision Date: 31 December 2001
• Docket Number: 2,98-08403
• Parties: THE PEOPLE, ETC., RESPONDENT, v. JERMAINE DAWKINS, APPELLANT. (IND. NOS. 1044/97 AND 1698/97) 1998-08403 1998-08404 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

THE PEOPLE, ETC., RESPONDENT,

v.

JERMAINE DAWKINS, APPELLANT.

(IND. NOS. 1044/97 AND 1698/97)

1998-08403

1998-08404

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - November 20, 2001

December 31, 2001

Robert C. Mitchell, Riverhead, N.Y. (Gregory J. Neilon of counsel), for appellant.

James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

DECISION & ORDER

Sondra Miller, J.P.

William D. Friedmann

Thomas A. Adams

Barry A. Cozier, JJ.

Appeals by the defendant from two judgments of the County Court, Suffolk County (Weber, J.), both rendered August 4, 1998, convicting him of robbery in the first degree (two counts) under Indictment No. 1044/97 and attempted robbery in the first degree under Indictment No. 1698/97, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are reversed, on the law, and a new trial is ordered.

At trial, the People requested that the defendant not be permitted to testify with respect to his whereabouts at certain relevant times, as he had failed to provide the People with notice of his alibi defense (see, CPL 250.20). The County Court granted the People's request. The defendant contends that the County Court's ruling constituted reversible error. We agree. The preclusive provisions of CPL 250.20 do not apply to a defendant's testimony, since the defendant has an absolute right, both statutorily and constitutionally, to testify on his own behalf (see, People v. Rakiec, 289 NY 306; People v. Peace, 256 A.D.2d 1014; People v. Cuevas, 67 A.D.2d 219, 224; People v. Duncan, 187 Misc.2d 205, 207-208; People v. Rosado, 153 Misc.2d 477; Walker v. Hood, 679 F Supp 372, 381, affd 854 F.2d 1315; see also, Alicea v. Gagnon, 675 F.2d 913). Therefore, the County Court committed reversible error in precluding the defendant from testifying as to his alibi.

S. MILLER, J.P., FRIEDMANN, ADAMS and COZIER, JJ., concur.