People v. Marzban

• Citation: 660 N.Y.S.2d 808,172 Misc.2d 987
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Nasser MARZBAN, Defendant.
• Decision Date: 05 June 1997
• Court: New York Supreme Court

Page 808

660 N.Y.S.2d 808

172 Misc.2d 987

The PEOPLE of the State of New York, Plaintiff, v. Nasser MARZBAN, Defendant.

Supreme Court, Queens County.

June 5, 1997.

Anthony M. Bramante, Brooklyn, for defendant.

Richard A. Brown, District Attorney of Queens County (Miriam McEnroe, Flushing, of counsel), for plaintiff.

PHILIP J. CHETTA, Justice.

On January 21, 1997 the instant indictment was filed in Queens County charging that on September 22, 1996 defendant possessed a loaded firearm.

Pursuant to CPL § 210.10 (which requires defendant's personal appearance), the matter appeared in part Tap II on February 25, 1997 for arraignment upon the indictment. Only defendant's counsel appeared and a bench warrant was ordered. Thereafter, on May 27, 1997, a motion was submitted seeking a dismissal of the indictment on the grounds that at the time of defendant's arrest at Kennedy International Airport in Queens County he was acting as a member of a security force assigned to a permanent mission to the United Nations and as such he possessed diplomatic immunity.

It appears by defendant's papers that he is seeking a dismissal pursuant to CPL § 210.20(1)[h] in that it is claimed that by such immunity there exists a legal impediment to conviction of the defendant for the offense charged.

The introductory language to said statute reads in pertinent part: "1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment". (CPL § 210.20(1).)

Arraignment is defined as the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court for purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument. (CPL § 1.20(9).)

This statutory provision merely codifies the well established principle that the courts acquire authority to adjudicate a matter when they have both subject matter and in personam jurisdiction. (People v. MacFarlene Co., 130 Misc.2d 70, 71, 494 N.Y.S.2d 826.)

There is no question that the Supreme Court has jurisdiction over the offense charged. Jurisdiction over the defendant is acquired by the filing of the accusatory instrument and an appearance by him before the court (People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723; see also, Albrecht v. United States, 273 U.S. 1, 8-11, 47 S.Ct. 250, 253, 71 L.Ed. 505; People v. Bradner, 107 N.Y. 1, 9, 13 N.E. 87) as well as arraignment upon the indictment. (People v. Weaver, 166 Misc.2d 488, 492, 634 N.Y.S.2d 968; People v. Consolidated Edison Co., 161 Misc.2d 907, 911, 615 N.Y.S.2d 978 and People v. Myles, 107 Misc.2d 960, 961, 436 N.Y.S.2d 134; see also People v. Bradner, supra.)

Thus, by defendant's failure to appear in court to be arraigned on the accusatory instrument the court has not acquired jurisdiction over the defendant. Accordingly the Court cannot entertain defendant's motion to dismiss (People v. Byfield, 131 Misc.2d 884, 885, 502 N.Y.S.2d 346; People v. Thompson, 107 Misc.2d 258, 433 N.Y.S.2d 961; People v. Kellog, 53 Misc.2d 559, 279 N.Y.S.2d 103 and People v. Equitable Gas-Light Co., 5 N.Y.S. 19).

The concept which requires defendant's appearance before the Court for arraignment is consistent with CPL § 210.20. Simply, the statute upon which the defendant seeks a dismissal is not implicated until he appears and is arraigned. (CPL §§ 210.10 and 210.20.)

It must be noted that although the Grand Jury evolves from the New York Constitution (Art. 1 Sec. 6), the power to regulate its duties, powers and functions remains with the legislature. (Matter of Wood v. Hughes, 9 N.Y.2d 144, 149, 212 N.Y.S.2d 33, 173 N.E.2d 21; People v. Cirillo, 100 Misc.2d 502, 530, 419 N.Y.S.2d 820.)

Thus, the power of the court to entertain an application to dismiss an indictment has been limited by the legislature to those instances where the defendant has personally...