People v. Ferrara

• Decision Date: 27 February 1984
• Citation: People v. Ferrara, 472 N.Y.S.2d 407, 99 A.D.2d 257 (N.Y. App. Div. 1984)
• Parties: The PEOPLE, etc., Respondent, v. Anthony FERRARA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 407

472 N.Y.S.2d 407

99 A.D.2d 257

The PEOPLE, etc., Respondent, v.Anthony FERRARA, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 27, 1984.

Salvatore F. Quagliata, Ozone Park, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Daniel J. Murphy, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BRACKEN and RUBIN, JJ.

PER CURIAM.

Pursuant to subdivision 5 of section 190.50 of the CPL, a defendant, under certain circumstances, has the right to appear as a witness in a Grand Jury proceeding.The primary issue presented on this appeal is whether a defendant who has pleaded guilty thereby forfeits appellate review of a claimed violation of this right.A further question for consideration is the extent to which the statute requires the District Attorney to defer presentation of a case to the Grand Jury in order to enable a defendant to appear and testify with counsel of his own choosing.

The defendant, Anthony Ferrara, was arrested on or about March 10, 1982 and was arraigned upon a felony complaint in the District Court of Suffolk County the next day.On March 15, 1982, a letter from the defendant's attorney giving notice of defendant's intention to testify before the Grand Jury was hand-delivered to the Suffolk County District Attorney's office.The letter stated that the attorney was then engaged in a trial in Federal court, and he requested that the District Attorney not present the case to the Grand Jury until the parties had agreed upon a date for the defendant's appearance.The next day defendant appeared in the District Court with his attorney's associate for a scheduled preliminary hearing and at that time was offered the opportunity to appear before the Grand Jury that day.He declined to do so, however, on the ground that his attorney was still engaged in Federal court and, at his request, the preliminary hearing was adjourned to March 24, 1982.On March 24, the defendant and associate counsel appeared once again in the District Court and advised the court that defense counsel's Federal trial was still in progress.The prosecutor again offered defendant the opportunity to testify before the Grand Jury that day, but the associate requested an additional adjournment so that defense counsel could appear with his client before the Grand Jury.The preliminary hearing was then adjourned to April 1, 1982, at the defendant's request.On the afternoon of March 24, 1982, an Assistant District Attorney placed a telephone call to defense counsel's office and advised a secretary that the case would be presented to the Grand Jury on March 30, 1982.The District Attorney received no further communications from defense counsel, and the case was presented to the Grand Jury on March 30, as scheduled, with the defendant failing to appear.An indictment was filed on March 31, the day on which defense counsel's trial in Federal court concluded.On April 1, the attorney appeared with the defendant in the District Court for the scheduled hearing on the felony complaint, only to learn that defendant had already been indicted.

Following his arraignment on the indictment, the defendant made a timely motion to dismiss the indictment upon the ground that his right to testify before the Grand Jury had been violated (CPL 190.50, subd. 5).Based upon the foregoing facts, Criminal Term denied the motion.Defendant then pleaded guilty to a reduced charge in satisfaction of the indictment, and sentence was imposed.On this appeal, the defendant's sole contention is that Criminal Term erred in denying the motion to dismiss.For the reasons that follow, we reject this contention and affirm the judgment of conviction.

By his plea of guilty, the defendant forfeited appellate review of his claim.A guilty plea waives certain claims (People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513;see, also, People v. Thomas, 74 A.D.2d 317, 428 N.Y.S.2d 20, affd.53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537), including a claim that the evidence before the Grand Jury was not legally sufficient (People v. Ali, 79 A.D.2d 974, 435 N.Y.S.2d 291) or that the Grand Jury was illegally constituted (People v. Best, 89 A.D.2d 1018, 454 N.Y.S.2d 463).The same rule applies with respect to an alleged violation of a defendant's right to testify before the Grand Jury.Since a guilty plea is itself a conviction which waives objections going to the factual findings of guilt (People v. Thomas, 74 A.D.2d 317, 320, 428 N.Y.S.2d 20, supra ), it would be incongruous for an appellate court to sustain a defendant's right to testify before the Grand Jury and to dismiss the indictment after defendant has admitted guilt in his plea.

The defendant, however, asserts that in People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782, this court reviewed on appeal from a judgment entered upon a plea of guilty a claimed deprivation of the right to testify before the Grand Jury.Any reliance upon Lincoln, however, is misplaced.In Lincoln, defendant was represented by counsel associated with the Legal Aid Society.On November 21, 1978, the People...