People v. Kellman

• Court: New York Supreme Court
• Writing for the Court: ROBERT S. KREINDLER
• Citation: People v. Kellman, 592 N.Y.S.2d 214, 156 Misc.2d 179 (N.Y. Sup. Ct. 1992)
• Decision Date: 04 December 1992
• Parties: The PEOPLE of the State of New York v. Livingstone KELLMAN, Defendant.

Page 214

592 N.Y.S.2d 214

156 Misc.2d 179

The PEOPLE of the State of New York v. Livingstone KELLMAN, Defendant.

Supreme Court, Kings County Criminal Term, Part 22.

Dec. 4, 1992.

Stuart Meltzer, Brooklyn, for defendant.

Lisa J. Roberts, Brooklyn, for Dist. Atty. Charles J. Hynes, for the People.

ROBERT S. KREINDLER, Acting Justice.

Defendant Livingstone Kellman moves for dismissal of the indictment on the grounds that he was denied his right to testify before the Grand Jury (CPL 190.50).

In deciding this motion, the court considered defendant's motion papers, memorandum of law (dated November 13, 1992), the People's response and the stenographic minutes of the proceedings in Criminal Court on July 24, 1992.

The facts are largely undisputed.

Defendant was arraigned in Criminal Court on July 20, 1992, at which time he was represented by Jane Cameron, Esq., of The Legal Aid Society. After receiving CPL 190.50 notice, Ms. Cameron served and filed a written cross notice (CPL 190.50(5)[a] advising the People of defendant's wish to avail himself of the opportunity to testify before the Grand Jury. Arrangements were made for defendant to appear before the Grand Jury on July 27, 1992 at 3:00 P.M.

On July 24, 1992 in Part AP1 of the Criminal Court, Ms. Cameron again appeared on behalf of the defendant and withdrew the CPL 190.50(5)(a) notice served on behalf of defendant four days earlier. ^*

On August 7, 1992, the Grand Jury voted to indict defendant and disbanded as its term had ended.

On August 13, 1992, defendant appeared in Part AP1 of the Criminal Court with privately-retained counsel. On that date defendant served a new notice upon the People that defendant wished to appear before the Grand Jury.

On August 17, 1992, 10 days after the Grand Jury voted to indict defendant and 4 days after receiving new 190.50 cross notice, the People filed the indictment. No explanation has been given for the People's delay.

The court must determine whether defense counsel's withdrawal of CPL 190.50 notice precluded subsequent re-serving of such notice (without leave of the court) after the Grand Jury voted to indict defendant but before the indictment was filed with the court.

CPL 190.50

CPL 190.50(5)(a) provides, in relevant part, that when

"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 own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, 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 supplied).

Upon receipt of such a notice, the People must subsequently advise the defendant, at the address specified, that he will be heard by the Grand Jury at a given time or place (CPL 190.50[5][b].

A defendant who gives timely notice reasonably prior to presentment to the Grand Jury and prior to the Grand Jury vote is entitled to testify before the Grand Jury votes in order to "properly effectuate[s] the purposes underlying the statute by protecting defendants' valued statutory option to appear at this critical accusatory stage ..." (People v. Evans, 79 N.Y.2d 407, 413-414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [emphasis supplied]; see also, People v. Young, 138 A.D.2d 764, 526 N.Y.S.2d 577; People v. Skrine, 125 A.D.2d 507, 509 N.Y.S.2d 589). The District Attorney has no correlative right to control or restrict the timing of defendant's exercise of rights under CPL 190.50 (People v. Evans, supra, 79 N.Y.2d, at 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362). It is a defendant who may choose at his or her option to testify at any time prior to the filing of the indictment (People v. Jones, 126 Misc.2d 104, 106-107, 481 N.Y.S.2d 594). The timing of the exercise of defendant's option is "unambiguously established" by CPL 190.50(5)--i.e., any time "prior to the filing of any indictment" (People v. Evans, supra, 79 N.Y.2d, at 413, 583 N.Y.S.2d 358, 592 N.E.2d 1362). Moreover, any "practical difficulties" encountered by the District Attorney as a result of the statutory provisions are given no legal effect (supra, at 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362).

In the case at bar, defendant refiled his notice under 190.50 without court permission in a timely fashion. The issue centers on whether after withdrawing a request to testify before a Grand Jury, is court permission necessary for renewal.

In determining this issue, the court has considered the following factors:

(I)

Statements made by counsel in a criminal action in open court have been held binding upon the party and the party cannot be relieved without court permission and a finding of good cause shown (see, People v. Walker, 198 N.Y. 329, 335, 91 N.E. 806 [1910]. Where a prosecutor stipulates on the record that he will not introduce defendant's statement into evidence, he would, after 15 days from arraignment, be precluded from withdrawing such statement (People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577). These principles generally emerged from the proposition that parties entering into a stipulation are bound by that stipulation until the court, on some equitable ground, relieves the parties from their stipulation (Clason v. Baldwin, 152 N.Y. 204, 211, 46 N.E. 322; People v. Aratico, 111 Misc.2d 1015, 445 N.Y.S.2d 951; see also, People v. Boughton, 70 N.Y.2d 854, 523 N.Y.S.2d 454, 517 N.E.2d 1340 [People barred from rescinding their withdrawal of CPL 710.30 notice].

A moving party may withdraw a motion after the court has decided it, only if it has permission of the court (People v. Catten, 69 N.Y.2d 547, 516 N.Y.S.2d 186, 508 N.E.2d 920). Prior to the rendition of the court's decision on motion, a party may withdraw such motion only where the opposing party is not prejudiced (supra, at 555, 516 N.Y.S.2d 186, 508 N.E.2d 920, citing People v. McGrath, 202 N.Y. 445, 453, 96 N.E. 92, and Cardenas v. Superior Ct., 56 Cal.2d 273, 14 Cal.Rptr. 657, 363 P.2d 889).

Moreover, once a defendant advises the court that he is ready for trial, a subsequent withdrawal and request for an adjournment is in the discretion of the court (People v. Mingo, 155 A.D.2d 485, 547 N.Y.S.2d 146). This proposition applies to the prosecutor as well (Matter of Hynes v. George, 76 N.Y.2d 500, 561 N.Y.S.2d 538, 562 N.E.2d 863). Nor may a prosecutor withdraw charges from a Grand Jury prior to a vote and resubmit without court permission (People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542).

There are thus situations where court permission is necessary before withdrawal of a request is authorized.

(II)

In contrast to the above, a witness who waives his or her U.S. Constitution Fifth Amendment rights may later withdraw the waiver and invoke such right to avoid perjury without leave of the court (People v. Bagby, 65 N.Y.2d 410, 492 N.Y.S.2d 562, 482 N.E.2d 41).

Moreover, a party may withdraw a motion prior to the court's decision (People v. McGrath, 202 N.Y. 445, 96 N.E. 92, supra ), and the People may generally withdraw charges from before the Grand Jury after it votes a true bill and submit later without leave to the court (People v. Cade, 74 N.Y.2d 410, 548 N.Y.S.2d 137, 547 N.E.2d 339; compare, People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542, supra [where leave to resubmit is required when prosecutor withdraws charges prior to the Grand Jury vote].

(III)

In circumstances akin to the matter at bar, once a prosecutor has selected an option under CPL 210.20(6) upon reduction of a indictment by the court, it may change its selection if made in a timely fashion, i.e., within 30 days of such reduction (People v. Gega, 151 Misc.2d 70, 580 N.Y.S.2d 639; People v. Jackson, 154 Misc.2d 769, 588 N.Y.S.2d 88).

The proposition advanced by these cases is significant in the context of CPL 190.50 notice in that, unlike the cases cited earlier, where no specific time frame was advanced within which action by a party could be taken, the courts in the Jackson and Gega matters permitted the District Attorney to "change its mind" after a selection was made, so long as it was done within the time provided in the statute.

Moreover, a defendant in a criminal case may withdraw his/her request for counsel and proceed pro se provided the request is made in a timely fashion (People v. Williams, 181 A.D.2d 995, 582 N.Y.S.2d 47). The only function of the court is to insure that the withdrawal of the request for counsel is knowing and voluntary (see, People v. Davis, 49 N.Y.2d 114, 424 N.Y.S.2d 372, 400 N.E.2d 313).

Similarly, here, CPL 190.50(5) "unambiguously establishes the timing requirement of defendant...