People v. Ellison

• Citation: 988 N.Y.S.2d 691,2014 N.Y. Slip Op. 04957,119 A.D.3d 602
• Parties: The PEOPLE, etc., respondent, v. Motion ELLISON, appellant.
• Decision Date: 02 July 2014
• Court: New York Supreme Court Appellate Division

119 A.D.3d 602

988 N.Y.S.2d 691

2014 N.Y. Slip Op. 04957

The PEOPLE, etc., respondent,

v.Motion ELLISON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 2, 2014.

Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered February 21, 2012, convicting him of sexual abuse in the first degree, luring a child, and endangering the welfare of a child, 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 pursuant to CPL 470.45, the matter is remitted to the Supreme Court, Kings County, and that court shall cause the defendant to be brought before it forthwith, at which time that court shall issue a securing order in accordance with the provisions of CPL 210.45(9).

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The indictment must nonetheless be dismissed, without prejudice to the People to re-present any appropriate charges to another grand jury. Under the particular circumstances of this case, the Supreme Court should have granted the defendant's timely motion to dismiss the indictment on the ground that he was deprived of his right pursuant to CPL 190.50 to testify before the grand jury prior to its vote on the indictment ( seeCPL 190.50[5] ); People v. Evans, 79 N.Y.2d 407, 583 N.Y.S.2d 358, 592 N.E.2d 1362;People v. Costas, 248 A.D.2d 482, 483, 670 N.Y.S.2d 197).

CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. “[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different from and more advantageous than the opportunity to testify ... after the Grand Jury ha[s] committed itself to a vote based on the prosecution's ex parte presentment of evidence” ( People v. Evans, 79 N.Y.2d at 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [internal quotation marks omitted]; see People v. Bey–Allah, 132 A.D.2d 76, 78–79, 521 N.Y.S.2d 422). Thus, a defendant who provides timely notice “prior to the prosecution's presentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled to testify before the vote” ( People v. Evans, 79 N.Y.2d at 413, 583 N.Y.S.2d 358, 592 N.E.2d 1362;see People v. Lyons, 40 A.D.3d 1121, 1122, 837 N.Y.S.2d 706;People v. Duran, 266 A.D.2d 230, 231, 697 N.Y.S.2d 343).

Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People must notify the defendant of the grand jury proceeding and accord him or her a reasonable time to appear ( seeCPL 190.50 [5][a]; People v. Smith, 87 N.Y.2d 715, 720, 642 N.Y.S.2d 568, 665 N.E.2d 138;People v. Evans, 79 N.Y.2d at 412–413, 583 N.Y.S.2d 358, 592 N.E.2d 1362). Here, the People's notice pursuant to CPL 190.50 indicated that the defendant was “scheduled to testify” before the grand jury on June 8, 2010, and that his testimony was required to have been given before...