People v. Dunn

• Decision Date: 10 December 1998
• Citation: 685 N.Y.S.2d 648,248 A.D.2d 87
• Parties: , 1998 N.Y. Slip Op. 10,940 The PEOPLE of the State of New York, Appellant, v. William DUNN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 648

685 N.Y.S.2d 648

248 A.D.2d 87, 1998 N.Y. Slip Op. 10,940

The PEOPLE of the State of New York, Appellant, v. William DUNN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 10, 1998.

Morrie I. Kleinbart, of counsel (Marc Frazier Scholl, on the brief; Robert M. Morgenthau, District Attorney of New York County) for appellant.

Paul Wiener, of counsel (M. Sue Wycoff, attorney) for defendant-respondent.

SULLIVAN, J.P., NARDELLI, MAZZARELLI, ANDRIAS, SAXE, JJ.

SULLIVAN, J.P.

The People appeal from the dismissal of an indictment charging defendant with fourth-degree criminal possession of stolen property, i.e., a Macy's credit card. The dismissal was on the ground that defendant, who, as the record shows, repeatedly acted obstreperously and ignored numerous directives to limit his testimony to the relevant facts, in a contentious appearance before the Grand Jury, was denied his statutory right to testify (CPL 190.50[5][a] ).

According to the Grand Jury testimony, on November 21, 1996, at about 7:20 p.m., defendant attempted to charge over $700 worth of merchandise at Macy's Herald Square store in Manhattan, by presenting a Macy's credit card issued in the name of James D. Frost. When the cashier entered the card number, the register, rather than accepting the transaction, instructed the cashier to ask for identification. Since the identification defendant presented did not include a photograph, the cashier became suspicious and telephoned Macy's credit card hotline. After speaking to the person on the hotline, defendant asked the cashier to hold the merchandise until his return.

After defendant's departure, the cashier and a Macy's security officer determined that the proffered credit card had been reported stolen. On defendant's return 15 minutes later, the security officer took him to the security office. Defendant stated that the credit card was his father's and that he had been authorized to use it. Defendant was subsequently arrested. A postarrest search of defendant uncovered a number of other cards in the name of James D. Frost as well as a medical insurance card in the name of Jenny J. Frost. Defendant explained that the cards had come from a wallet he had found.

At his Criminal Court arraignment on charges of fourth-degree possession of stolen property, i.e., two credit cards stolen from James Frost, and one count of attempted petit larceny, based on his attempt to use one of those cards to purchase merchandise at Macy's, defendant served notice of his intention to testify before the Grand Jury. In their subsequent presentation to the Grand Jury, the People called the Macy's cashier and security officer as their witnesses. Four days later, defendant appeared with his attorney before the Grand Jury and acknowledged that he had read and signed a waiver of immunity and had conferred with his attorney.

When asked if he understood that even though he was appearing before the Grand Jury as a witness he could still be charged with a crime, defendant stated that he "[w]ould hope that not mean that by my testimony today, that you would be relieving your obligation to present your case and they can indict me on the testimony; is that what you saying?" After some verbal jousting with the prosecutor, defendant acknowledged his understanding that he could "be charged with the crime or crimes base[d] upon [his] testimony or other evidence submitted to the Grand Jury."

Asked by the prosecutor if he wished to make a statement about the incident that took place at Macy's on November 21, 1996, defendant explained that he was exercising his right to appear to "explain my actions an[d] my conduct on the date of the allege[d] incide[n]t--here, with a view toward asking you not to vote a true bill, not to subject me to the ordeal of waiting for and going on trial. And after I have given you that explanation, I will ask you to do that."

When defendant proceeded with a statement that it was his understanding that the Grand Jury "not only have the function of procuring evidence and voting" and the prosecutor interrupted, defendant chided him that he could not "direct me as to exactly--I can testify." Suggesting that they ask the supervising Judge for a ruling, defendant cut off the prosecutor's response and directed that he not interrupt him unless he was doing something "clearly illegal or outside of procedural prerequisite." When the prosecutor asked defendant to limit his testimony to the events of November 21, 1996, defendant demanded to appear before the Judge in charge. Outside of the Grand Jury chamber with defendant present, the prosecutor advised defense counsel that defendant "could make any statement he wished concerning what happened or did not happen on November 21, 1996, but that I would not allow him to go into irrelevant matters." After consulting with his attorney, defendant returned to the Grand Jury room.

On his return, defendant, when asked if he would like to make a statement about the November 21st incident, stated that he wished "to testify * * * in defense of the charges lodged against me in the felony complain[t] * * * within parameter of reason and--and law, and within the boundaries of my own presentation and not stipulated by [the prosecutor] and [his] liking." Defendant told the grand jurors that it was relevant as to what happened on November 21st "for me to describe to them briefly, not dogmatically why I'm here." The prosecutor interrupted defendant to remind him that he was there to present only "relevant and competent testimony pertaining to the incident under investigation" and warned that if he did not comply the proceeding would be stopped.

Instead of giving a factual account of the incident, defendant offered a not always coherent lecture to the Grand Jury on the alleged insufficiency of the evidence presented against him:

In the felony complaint in Criminal Court, I was charged on November 21st. It says that 1920 hours with two offenses, Penal Law Section 165.45; two counts of criminal possession of stolen property in the fourth degree. These charges were brought by an officer, a police officer name Maria Cobin (phon) of the Midtown South Precinct. I don't know if you have heard from her, but she's one who brought the charges and felony complaint to which I have been held on these charges on November 21st.

In her felony complaint she claims that Detective Clouden, who I don't know, a Detective Clouden. I know him as Mr. Clouden who is a security officer, an African gentleman for Macy's claims three things: Claims that I presented a Macy's credit card in the name of James Frost in attempt to purchase seven hundred dollars worth of merchandise, worth of clothes and that the card was stolen. And that I had a Bloomingdale card in the name of James Frost and that card too was stolen. This is an affidavit signed, a felony complaint signed by Officer Cobin, based upon whatever information she allegedly got from Detective Clouden. In addition to that, they charge me with attempted petit larceny in the same phony complaint, that I attempted to purchased these clothing.

What's peculiar here, is not what I see here and--but is not here--What's not here is not before you. If you were aware of it, you would not proceed to vote a true bill of possession of stolen property.

Mr. Clouden, the detective, and Mr. Frost, whom you should know a lot more about, the allege victim who also works, I think in the same employers as this gentleman here, is not what it appears to be on top.

First of all, the attempted possession, the attempted petit larceny is conclusive. I suggest that you--that the district attorneys in the State of New York, has not presented a single piece of evidence that I attempted to purchase those documents. I suggest to you that any and all evidence pointing towards that, comes out the mouth of two people who were not there, one being Detective Clouden who was not there, and the other being Mr. Frost who was definitely not there.

I suggest to you, you have not heard from the buyer. I have no right to ask you to call a particular witness, but I can certainly request that you consider calling one and I ask you to do that. This witness is an individual who conducted the actual sale on the date, I guarantee that the People did not present her before you.

And there is a reason why, because if you question that lady, you would find that I was not the person who attempted to make a purchase, one; and two, who possessed the card, that's the second thing. And without that there is no basis for me being there and no basis for me being held or being subjected to a trial.

I am not coming before you and say I'm squeaky clean. I am not guilty of charges presented. I have a history and my history is probably more the reason I'm here, but I don't believe in America we should--This is the stage where they stop using your history. Once you get to this body, the history does not matter any more. It's the fact that they have or do not have. That should do from here.

I ask you to reply exclusively on facts. If they have not sufficient evidence to warrant me being held for trial or further action on this case, don't let them proceed. I say that's part of your responsibility as much as it is to protect the people by voting and indicting. You have a duty not to vote if there is not sufficient evidence.

When defendant continued, advising the Grand Jury that "[t]he second point which I feel is just so important as the first, and I'm going to leave a copy of this felony complainant [sic]," the prosecutor interrupted, "I'm sorry to interrupt. Could you limit your statement to what did or did not happen?" When asked as to which of defendant's comments were improper, the prosecutor explained that defendant could not refer to "such things as [the] felony complaint[,] which is hearsay" and asked defendant to limit his comments "to what did or did not happen...