People v. Fulton

• Citation: 616 N.Y.S.2d 881,162 Misc.2d 360
• Parties: The PEOPLE of the State of New York v. Amos FULTON, Defendant.
• Decision Date: 15 September 1994
• Court: United States State Supreme Court (New York)

Page 881

616 N.Y.S.2d 881

162 Misc.2d 360

The PEOPLE of the State of New York v. Amos FULTON, Defendant.

Supreme Court, Monroe County.

Sept. 15, 1994.

Angela P. Reyes, Asst. Dist. Atty., Howard R. Relin, Dist. Atty., for People.

Elma A. Bellini, Asst. Public Defender, Edward J. Nowak, Public Defender, for defendant.

JOHN D. DOYLE, Justice.

Criminal Procedure Law 190.50(5)(a) provides, in pertinent part, that "[w]hen a criminal charge against a person is being ... submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment ... he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent." (emphasis added) The question presented in this case is whether counsel for the Defendant complied with the statutory requirement that written notice be served upon the District Attorney by depositing the notice in a box at the Public Defender's Office designated for interoffice mail.

The facts are not disputed ¹. On March 2, 1994, Defendant was arraigned in Rochester City Court on a felony complaint accusing him of Burglary in the Second Degree and Petit Larceny. The matter was waived to the Grand Jury on March 7, 1994. On Thursday, June 16, 1994, defense counsel received a letter from the Assistant District Attorney assigned to the case advising her that the matter would be submitted to the Monroe County Grand Jury on June 23, 1994 at 11:30 a.m. Defense counsel did not attempt to notify the Assistant District Attorney of her client's desire to testify at the Grand Jury until Monday, June 20, 1994, when she prepared a handwritten letter to the Assistant District Attorney which read, "I am on trial this week but believe my client would like to testify. Could you please contact me to make arrangements." Defense counsel photocopied the letter, placed it in an envelope, wrote the Assistant District Attorney's name and the letters "A.D.A." on the outside of the envelope, and deposited the envelope in a box at the Monroe County Public Defender's Office designated for interoffice mail. Counsel made no other attempts--either verbal or written--to notify the Assistant District Attorney that her client wished to testify. The Assistant District Attorney never received the handwritten letter sent by defense counsel. Defendant was indicted on June 24, 1994 and arraigned before this Court on June 30, 1994. Counsel now moves to dismiss the indictment pursuant to Criminal Procedure Law (CPL) 210.35(4) on the ground that the Defendant was not afforded the opportunity to testify before the Grand Jury. The People oppose the motion, claiming that the Defendant failed to comply with the notice requirements contained in CPL 190.50.

There are a number of statutory pretrial rights available to a criminal defendant, including the right to testify before the Grand Jury, which may be lost by inaction. "The burden rests on the parties to protect their own rights by asserting them at the time and in the manner that the legislature prescribes." (People v. Lawrence, 64 N.Y.2d 200, 207, 485 N.Y.S.2d 233, 474 N.E.2d 593). To assert the right to testify before the Grand Jury, a defendant is required to make a written request to testify and to serve the written request upon the district attorney (CPL 190.50(5)(a)). The appellate courts have repeatedly and consistently held that the statutory requirement that the defendant provide the people with written notice is to be strictly enforced; oral notice is not sufficient (People v. Green, 187 A.D.2d 528, 589 N.Y.S.2d 916; People v. Robinson, 187 A.D.2d 296, 589 N.Y.S.2d 453; People v. Brooks, 184 A.D.2d 518, 584 N.Y.S.2d 186; People v. Saldana, 161 A.D.2d 441, 556 N.Y.S.2d 534). Interpretation of the additional statutory requirement that the written notice be served upon the District Attorney is more problematic. Although the Criminal Procedure Law contains several references to a defendant's duty to serve a written notice upon the District Attorney, ² it does not catalog the permissible methods of service. Further, no appellate courts have been called upon to resolve this issue.

The Civil Practice Law and Rules (CPLR) offers some guidance. CPLR 2103, entitled "Service of Papers", reads in pertinent part as follows:

(b) Except where otherwise prescribed by law or order of the court, papers to be served upon a party in a pending action shall be served upon the party's attorney ... Such service upon an attorney shall be made:

1. by delivering the paper to the attorney personally; or

2. by mailing the papers to the attorney at the address designated by that attorney for that purpose ... or

3. if the attorney's office is open, by leaving the paper with a person in charge, ... or

4. by leaving it at the attorney's residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at [his] residence unless service at [his] office cannot be made; or

5. by transmitting the paper to the attorney by electronic means ... or

6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose.

This Court concludes that each method of service listed in CPLR 2103 is a proper method of serving the District Attorney with notice of a Defendant's intent to testify before the Grand Jury. However, since the CPLR does not govern criminal proceedings ³, it cannot be said that the six enumerated methods are the exclusive methods of serving papers in a criminal case. Where counsel serves the notice in a manner not prescribed in the statute, the court must examine the method of service to determine whether the written notice was served in a manner reasonably calculated to apprise the District Attorney of Defendant's intent to testify (compare People v. Jordan, 153 A.D.2d 263, 266, 550 N.Y.S.2d 917; People v. Abdullah, 189 A.D.2d 769, 592 N.Y.S.2d 406).

Since service by interoffice mail is not one of the methods enumerated in CPLR 2103, this case turns on whether, under the circumstances of this case, the method of service utilized was reasonably calculated to apprise the District Attorney of Defendant's intent to testify. The Court concludes that it was not.

Significantly, the deposit of a letter in an interoffice mail system does not give rise to a presumption of delivery, as would have been the case had the letter been deposited in the United States mail (Richardson, Evidence § 80, [Prince 10th ed.]; People v. Johnson, 190 A.D.2d 910, 593 N.Y.S.2d 589). It is also significant that Defendant has failed to demonstrate the reliability of the interoffice mail system at issue. Counsel, an experienced and capable Assistant Public Defender, had only used the interoffice mail occasionally. At the time she sent the notice, counsel believed that the letter would be delivered directly to the District Attorney's Office; she did not learn until later...