People v. Frank

• Decision Date: 27 July 1981
• Citation: 441 N.Y.S.2d 1002,83 A.D.2d 642
• Parties: The PEOPLE, etc., Respondent, v. Colin FRANK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1002

441 N.Y.S.2d 1002

83 A.D.2d 642

The PEOPLE, etc., Respondent, v. Colin FRANK, Appellant.

Supreme Court of New York, Appellate Division Second Department.

July 27, 1981

John Laurence Kase, Kase & Druker, Mineola (Paula Schwartz Frome, Mineola, of counsel), for appellant. Denis Dillon, Dist. Atty., Mineola (Laurie Stein Hershey and William C. Donnino, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Appeal by defendant from a judgment of the County Court, Nassau County (Collins, J.), rendered July 11, 1980, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. Judgment affirmed. No opinion.

LAZER, COHALAN and WEINSTEIN, JJ., concur.

HOPKINS, J. P., dissents and votes to reverse the judgment and dismiss the indictment, with leave to the prosecution to apply for an order permitting resubmission, with the following memorandum:

Defendant has been convicted on his plea of guilty of criminal possession of a controlled substance in the third degree. Prior to indictment the defendant waived immunity and testified before the Grand Jury. He testified that he had not sold cocaine on the occasions in question but had, rather, purchased it. The defendant then asserted that he had taken a polygraph test, and that by this test the veracity of his testimony had been supported. He offered to introduce before the Grand Jury the results of the test. The prosecutor immediately called the Grand Jury into recess and withdrew the case from that Grand Jury. Thereafter the prosecution moved for an order precluding the defendant from presenting polygraph test evidence before any future Grand Jury. Although the court denied the motion on the ground that it was within the province of the prosecutor to instruct the Grand Jury on the admissibility of such evidence and not the court, the court stated in dicta that the polygraph evidence was not admissible before a Grand Jury (see People v. Frank, 101 Misc.2d 736, 472 N.Y.S.2d 317). The District Attorney then presented the case to a new Grand Jury. The defendant and the District Attorney entered into a stipulation whereby the defendant was permitted to place a statement on the records of the Grand Jury "in the absent of any grand jurors" to the effect that the defendant (1) would offer polygraph evidence before the Grand Jury in the belief that it was proper to do so, (2) the defendant excepted to the dictum of Criminal Term that polygraph evidence was inadmissible, and (3) the defendant did not waive, by testifying before the Grand Jury, his claim that he had been deprived of testifying fully before a Grand Jury in that polygraph evidence has not been allowed to be presented by him, and his claim that the District Attorney did not have the authority to re-present the case, without a court order, after the District Attorney had withdrawn the matter from a previous Grand Jury. Thereafter, the defendant again waived immunity and testified before the Grand Jury, in accordance with the stipulation. The Grand Jury indicted the defendant for a criminal sale of a controlled substance in the second, third and fifth degrees, and criminal possession of a controlled substance in the third degree. The defendant then moved to dismiss the indictment on the grounds (1) that the prosecutor was not authorized to re-present the case to a second Grand Jury without a court order, and (2) that the prosecutor had improperly prevented the defendant from presenting polygraph evidence to the Grand Jury, and thus had abridged the defendant's right to testify before the Grand Jury. That motion was denied by the County Court, which held that court approval for the resubmission of the matter to the second Grand Jury was not required, since the first Grand Jury did not dismiss the charges; the court also held that the defendant's right to testify before the Grand Jury had not been infringed, since polygraph evidence was inadmissible. The defendant then pleaded guilty to criminal possession of a controlled substance in the third degree, in satisfaction of all the counts in the indictment. I conclude that the defendant's rights were violated by the procedures adopted by the prosecution before the Grand Jury. Although the defendant has pleaded guilty, the plea does not waive any jurisdictional defect in the proceedings before the Grand Jury. CPL 190.75 (subd. 3) provides that when a charge has been dismissed by a Grand Jury, it may not again be submitted, unless the court authorizes or directs the People to resubmit such charge...