People v. Evans

• Decision Date: 07 May 1992
• Citation: 592 N.E.2d 1362,79 N.Y.2d 407,583 N.Y.S.2d 358
• Parties: , 592 N.E.2d 1362 The PEOPLE of the State of New York, Appellant, v. David EVANS, Respondent. The PEOPLE of the State of New York, Appellant, v. Dana DAVIS, Respondent. The PEOPLE of the State of New York, Appellant, v. Juan OQUENDO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 358

583 N.Y.S.2d 358

79 N.Y.2d 407, 592 N.E.2d 1362

The PEOPLE of the State of New York, Appellant, v. David EVANS, Respondent.

The PEOPLE of the State of New York, Appellant, v. Dana DAVIS, Respondent.

The PEOPLE of the State of New York, Appellant, v. Juan OQUENDO, Respondent.

Court of Appeals of New York.

May 7, 1992.

[79 N.Y.2d 409] Richard A. Brown, Dist. Atty. (John Castellano, Barbara Underwood, New York City, and Andrew Zwerling, Kew Gardens, of counsel), for appellant in the first, second and third above-entitled actions.

Laura Kreel Wexler and Philip L. Weinstein, New York City, for respondents in the first, second and third above-entitled actions.

OPINION OF THE COURT

BELLACOSA, Judge.

The legal question common to these three cases arises out of the interpretation and practical interplay between CPL 190.50(5) and 180.80. CPL 190.50(5) affords individuals preliminarily accused of crimes the right to testify before a Grand Jury weighing the criminal charges against them provided that timely notice is given by the accused. CPL 180.80 requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted.

The issue is whether these three defendants were deprived of their statutory right to appear and testify before a Grand Jury under CPL 190.50(5) where, despite their written requests served on the People at their arraignments on felony complaints, the prosecutor nevertheless proceeded to present criminal charges to the Grand Jury in order to avoid the automatic and imminent consequences of the People's failure to satisfy CPL 180.80. We also consider whether the statutory right to appear was satisfied when the prosecutor offered these defendants the opportunity to have their say after the Grand Jury had already voted to indict them.

Supreme Court, Queens County, dismissed each indictment. The Appellate Division heard the three People's appeals together and affirmed for the reasons stated in its Oguendo memorandum decision (People v. Oquendo, 172 A.D.2d 566, 568 N.Y.S.2d 815; People v. Evans, 172 A.D.2d 557, 568 N.Y.S.2d 880; People v. Davis, 172 A.D.2d 554, 568 N.Y.S.2d 879), reasoning that "[t]he opportunity to testify before a Grand Jury which has already considered the matter and voted to indict, is qualitatively different [from] the right to testify prior to the time that the Grand Jury has been charged and votes" (172 A.D.2d, at 567, 568 N.Y.S.2d 815, supra ). It held that in these situations in which defendants gave timely statutory notice prior even to the Grand Jury presentments, the right conferred by CPL 190.50(5) to testify before a Grand Jury "must include the right to testify before the Grand Jury has voted on the matter" (172 A.D.2d, at 567-568, 568 N.Y.S.2d 815, supra [emphasis in original]. On a grant of leave to the People in each case by a Judge of this Court, we affirm the orders of the Appellate Division affirming Supreme Court's dismissal of the respective indictments.

These appeals stem from independent arrests and felony complaints. Defendant Oquendo was charged with criminal sale of a controlled substance, third degree, and criminal possession of a controlled substance, seventh degree; defendant Evans was charged with grand larceny and criminal possession of stolen property in the third degree; and defendant Davis was charged with robbery in the first and second degree, among other crimes. At their separate arraignments the day after their arrests, the People served defendants with notice under CPL 190.50(5)(a) that criminal charges would be presented to a Grand Jury. Defendants responded with written notices under that statute that they intended to exercise their right to testify before the Grand Jury. Defendants were held in pretrial detention at Rikers Island because they could not make bail, and their cases were adjourned to a scheduled date and time for presentment and for their appearances before the Grand Jury. They were so notified.

However, on the scheduled dates, which in each case was the last day of the CPL 180.80 period, and despite court orders for their production before the Grand Jury, Evans and Oquendo were not produced by the Department of Correction until after the indictments were already voted. Defendant Davis was produced in timely fashion, but he was returned to the detention facility before being given the opportunity to testify "due to the lack of security". According to the prosecutor's affirmations, the Assistant District Attorneys presented the respective cases to the Grand Jury, instructed it on the law, and obtained indictments in order to avoid the consequences of CPL 180.80.

The People, however, did not immediately file the indictments with the court. Defense counsel contacted the prosecutors and objected to the voting of the indictments in the face of defendants' nonproduction and nonappearance. The Assistant District Attorneys offered to further delay filing the indictments, to reopen the Grand Jury proceedings, and to allow defendants to testify before the same Grand Jury that had already voted to indict them. The attorneys for the defendants rejected this suggestion and the indictments were filed with the court.

When defendants were arraigned on the indictments, their attorneys moved to dismiss pursuant to CPL 210.20(1)(c), 210.35(4) and 190.50(5)(c) on the ground that the People had failed to afford defendants an opportunity to exercise their timely invoked right to appear before the Grand Jury. Defendants assert that they were entitled to appear prior to the Grand Jury vote since they had provided notice of intent to testify before presentment and vote. The People counter that the opportunity to testify before the Grand Jury at a reopened presentment satisfied the literal right conferred by CPL 190.50(5), that defendants would not have been prejudiced by this procedure, and that the People should not be burdened by the failure of the New York City Department of Correction to produce the defendants because the District Attorney does not control that Department. The People argue that CPL 190.50(5) merely requires defendants' appearance any time prior to filing of an indictment, regardless of when defendants served notice of intent, since the timing mechanism for defendants' invocation of the right continues until such filing. Further, the People argue that in these circumstances they should not be required to delay Grand Jury votes where such a delay would result in release of detained individuals pursuant to the mandate of CPL 180.80. To the extent the People rely on People v. Cade, 74 N.Y.2d 410, 548 N.Y.S.2d 137, 547 N.E.2d 339, we note that the case involved a different statute, CPL 190.75, which is inapplicable here and in no way supports the People's contentions in the instant situation.

CPL 190.50, adopted in 1970 (L.1970, ch. 996, § 1) as part of the recodification of the Code of Criminal Procedure, effectively expanded an accused's rights related to impending Grand Jury proceedings. Under Code of Criminal Procedure § 250(2), from which CPL 190.50 was partly derived, the District Attorney was not required to notify an accused that Grand Jury action was possible. If a person learned of potential Grand Jury action and wished to testify, that person was required, prior to any vote, to serve notice of intent to testify in order to become entitled to a prevote appearance (Code Crim.Pro. § 250[2]; Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 190.50, at 145 [1971].

The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50(5)(a) then adds in pertinent part that "[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request" (emphasis...