People v. Marquez

• Decision Date: 08 January 1993
• Citation: 156 Misc.2d 509,593 N.Y.S.2d 745
• Parties: The PEOPLE of the State of New York v. Jose MARQUEZ, Defendant.
• Court: New York Supreme Court

Page 745

593 N.Y.S.2d 745

156 Misc.2d 509

The PEOPLE of the State of New York v. Jose MARQUEZ, Defendant.

Supreme Court, Criminal Term Kings County, Part 42.

Jan. 8, 1993.

Charles J. Hynes, Dist. Atty. (Samuel Karliner, Brooklyn, of counsel), for people.

Office of Legal Aid (Mark Cogan, Brooklyn, of counsel), for defendant.

MELVIN S. BARASCH, Justice.

In a memorandum and order dated September 16, 1992, this Court granted the above-named defendant's motion for an order dismissing the indictment. This dismissal was based upon a presentation by the Assistant District Attorney whose improper questioning of the defendant and unprofessional conduct toward defense counsel, then present, impaired the integrity of the Grand Jury proceeding to the extent that prejudice may have resulted. People v. Marquez, 7268/92. The People re-presented the case to a second grand jury, and the defendant was arraigned on the present indictment on November 18, 1992. The defendant is charged with crimes of attempted murder in the second degree, robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees.

As part of the omnibus relief sought, the defendant now moves for dismissal of the new indictment, based upon prosecutorial misconduct in the Grand Jury. In substance, defense counsel states that on November 2, 1992, he was present when the defendant, in custody, testified. Prior to defendant's entry into the Grand Jury room, two Detective Investigators from the District Attorney's Office took steps to make sure that the defendant, who was in handcuffs, could not be viewed by the jurors. Once it was determined that all of the jurors were inside the Grand Jury room, the defendant, no longer handcuffed and accompanied by defense counsel and one detective investigator, entered the grand jury room and testified.

At the conclusion of his testimony, defendant and defense counsel were led into a small vestibule area directly outside the door to the Grand Jury. The defendant was re-handcuffed and placed against the wall. Immediately thereafter, the door to the Grand Jury room opened, and the jurors commenced filing out of the room through the vestibule where the defendant was standing, handcuffed, in the company of one Detective Investigator and defense counsel. Several minutes later, this process was repeated, in reverse, with the jurors once again passing within five feet of the defendant in the course of entering the room to hear further testimony, to be charged and to deliberate. During this period, the door to the vestibule was left open, allowing those jurors who remained in the room to view the defendant.

Defense counsel expressed his objection to the Detective Investigator who remained in the vestibule (the two Assistant District Attorneys had left when the defendant was initially escorted to the vestibule). He was told by the Detective Investigator that he could not transport the defendant in the absence of his partner, who had inexplicably left the scene.

The defendant was not removed from the scene until after the jurors returned to the Grand Jury room.

Defense counsel's version of what occurred is uncontroverted by the District Attorney.

The United States Supreme Court has characterized the use of shackles as "inherently prejudicial", Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), noting both that "the sight of shackles ... might have a significant effect on the jury's feelings about the defendant," and that "the use of [shackles] is itself something of an affront to the very dignity and decorum of judicial proceedings". Id. (quoting Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)). See also, Gilmore v. Armontrout, 861 F.2d 1061 (8th Cir.1988).

In New York, the Court of Appeals has stated that "a defendant is presumed innocent and he is entitled to appear in court with the dignity and self-respect of a free and innocent man." People v. Roman, 35 N.Y.2d 978, 979, 365 N.Y.S.2d 527, 324 N.E.2d 885. A fair trial may be denied a defendant charged with the commission of a crime if he is presented in court in shackles, or in prison garb, without reasonable grounds for that condition. People v. Gonzalez, 55 A.D.2d 656, 390 N.Y.S.2d 137.

Appellate courts in New York have generally expressed a reluctance to reverse convictions even where the record is clear that the defendant was observed by jurors while in prison garb, leg-irons...