People v. Graham

• Decision Date: 16 July 2020
• Docket Number: 110498
• Citation: 127 N.Y.S.3d 647,185 A.D.3d 1221
• Parties: The PEOPLE of the State of New York, Respondent, v. Raquad GRAHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1221
127 N.Y.S.3d 647

The PEOPLE of the State of New York, Respondent,
v.
Raquad GRAHAM, Appellant.

110498

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

Calendar Date: June 12, 2020
Decided and Entered: July 16, 2020

Carolyn B. George, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

185 A.D.3d 1222

127 N.Y.S.3d 648

Appeal, by permission, from an order of the Supreme Court (Breslin, J.), entered August 14, 2018 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a weapon in the second degree, after a hearing.

A jury convicted defendant of criminal possession of a weapon in the second degree in 2014, and this Court affirmed the judgment on appeal ( 138 A.D.3d 1242, 29 N.Y.S.3d 656 [2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ). Thereafter, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction. Following a limited hearing, Supreme Court denied the motion. With this Court's permission, defendant appeals.

Initially, as defendant could have raised on his direct appeal his arguments regarding alleged Rosario or Brady violations and alleged ineffective assistance due to counsel's failure to move to suppress the gun, those arguments are not proper bases for his CPL 440.10 motion (see CPL 440.10[2][c] ). Defendant's primary remaining arguments revolve around his right to testify before the grand jury (see CPL 190.50[5] ) – that he was deprived of that right, and that counsel was ineffective for failing to secure that right and for failing to seek dismissal of the indictment based on the deprivation of that right. At the hearing on his motion, "defendant ha[d] the burden of proving by a preponderance of the evidence every fact essential to support the motion" ( CPL 440.30[6] ).

"While the right to testify before a grand jury is significant and must be scrupulously protected, a prospective defendant has no constitutional right to testify before the grand jury" as it is a "limited statutory right" ( People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] [internal quotation marks, emphasis, brackets and citations omitted]; see CPL 190.50[5] ). Because defendant had been arraigned in a local criminal court upon an undisposed of felony complaint, CPL 190.50(5)(a) required the People to "notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein." "[S]uch notice must be reasonably calculated to apprise the defendant of the grand jury proceeding and permit him or her to exercise his or her right to testify" ( People v. Ruffino, 72 A.D.3d 1353, 1354, 898 N.Y.S.2d 731 [2010] [internal quotations marks, brackets and citation omitted] ).

185 A.D.3d 1223

The People were not required to provide notice to defendant personally, as they had provided notice to the Public Defender's office, which had been assigned to represent him (see CPL 190.50[5][a] ; compare People v. Ruffino, 72 A.D.3d at 1355, 898 N.Y.S.2d 731 ). Contrary to defendant's assertion that he was not assigned counsel prior to his indictment, this Court previously noted that the record on his direct appeal "establishe[d] that, prior to indictment, defendant was represented by the Public Defender's office, that the People provided that office with notice of the grand jury proceeding and that attempts were made to notify defendant of the proceeding" ( 138 A.D.3d at 1244, 29 N.Y.S.3d 656 ). The People also acted reasonably by providing notice approximately 26 hours prior to the presentment to the grand jury, thus meeting their statutory

127 N.Y.S.3d 649

obligation (see People v. Miller, 160 A.D.3d 1040, 1041, 75 N.Y.S.3d 112 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ; People v. Dorsey, 151 A.D.3d 1391, 1393, 58 N.Y.S.3d 636 [2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 132, 89 N.E.3d 522 [2017] ; People v. Wilkerson, 140 A.D.3d 1297, 1300, 33 N.Y.S.3d 523 [2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; compare People v. Hymes, 122 A.D.3d 1440, 1441, 996 N.Y.S.2d 850 [2014] ).

Defendant did not establish that he was entitled to reversal based on ineffective assistance of counsel. Even assuming that the Public Defender's office failed in...