People v. Ditcher

CourtNew York District Court
Citation196 Misc.2d 272,764 N.Y.S.2d 343
Decision Date08 August 2003
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>THOMAS L. DITCHER, Defendant.

196 Misc.2d 272
764 N.Y.S.2d 343

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
THOMAS L. DITCHER, Defendant.

August 8, 2003.


Wendy G. Roberts, Public Defender, and Fern S. Adelstein, Olean, for defendant.

Edward M. Sharkey, District Attorney, for plaintiff.

OPINION OF THE COURT

LARRY M. HIMELEIN, J.

On or about April 26, 2003, defendant was arrested and charged with driving while intoxicated (DWI) as a felony in the

[196 Misc.2d 273]

Village of Allegany. No preliminary hearing was held and defendant did not waive the case to the grand jury.

On May 31, 2003, defendant was arrested and charged with murder in the second degree in the Town of Great Valley. He allegedly shot and killed his brother. After a preliminary hearing on June 4, 2003, Town Court held defendant for grand jury action.

On or about June 30, 2003, defendant served a notice on the District Attorney that he intended to testify before the grand jury in connection with the murder charge. On July 3, 2003, Wendy Roberts, one of the attorneys representing defendant on the murder charge, received notice that the murder case would be presented to the grand jury on July 10, 2003. On the same date, Fern Adelstein, who represents defendant on the DWI charge and is cocounsel on the murder charge, received a notice that the DWI case would also be presented to the grand jury on July 10, 2003.

On July 7, 2003, Ms. Roberts and Ms. Adelstein wrote to the District Attorney indicating that defendant wished to testify on the murder charge but did not wish to testify on the DWI charge and asked that the two incidents be presented to separate grand juries. The District Attorney never responded to that letter. On July 10, 2003, Ms. Roberts and Ms. Adelstein again wrote to the District Attorney saying that since he had not responded to their request that the incidents not be presented to the same grand jury, they had no choice but to withdraw their request to have defendant testify.

Apparently, unbeknownst to the defense, only the murder case was presented to the grand jury on July 10, 2003. An indictment charging defendant with murder was returned on July 14, 2003. Defendant was arraigned on that date and pleaded not guilty. On July 18, 2003, defendant moved to dismiss the indictment on the grounds that he was denied his CPL 190.50 right to testify before the grand jury. Defendant claims that by ignoring his letter of July 7, 2003, and sending notices stating that both incidents would be presented to the same grand jury, the District Attorney prevented defendant from testifying on his own behalf on the murder charge.

The District Attorney contends that the People satisfied their CPL 190.50 obligation by serving the notice on the defense. He further contends that by...

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