People v. Roberts

• Decision Date: 06 January 2011
• Citation: 913 N.Y.S.2d 829,80 A.D.3d 787
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawn ROBERTS, Also Known as Jay, Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 829
80 A.D.3d 787

The PEOPLE of the State of New York, Respondent,
v.
Shawn ROBERTS, Also Known as Jay, Appellant.

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

Jan. 6, 2011.

913 N.Y.S.2d 829

Paul J. Connolly, Delmar, for appellant.

913 N.Y.S.2d 830

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.

KAVANAGH, J.

80 A.D.3d 788

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered September 18, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (three counts), assault in the second degree and tampering with a witness in the third degree.

On three separate occasions, the last being on November 9, 2007, defendant was alleged to have sold narcotics to an informant working for the police in a drug investigation they were conducting in the City of Watervliet and Town of Colonie in Albany County. After the third sale, defendant was arrested and charged with three counts of criminal sale of a controlled substance in the third degree. While on bail, defendant confronted the informant, accused him of cooperating with the police and, in an attempt to intimidate him, restrained the informant while another individual-Ian Greene-stabbed him in the neck with a hot fork.¹ As a result of this incident, defendant was also charged with two counts of robbery in the second degree, assault in the second degree and tampering with a witness in the third degree. After a jury trial, defendant was convicted of the three counts of criminal sale of a controlled substance in the third degree, as well as the assault and tampering with a witness charges, and sentenced as a second felony offender to an aggregate prison term of 37 years, with various terms of postrelease supervision. Defendant now appeals.

Initially, defendant maintains that County Court improperly denied his motion to dismiss the indictment on the ground that he did not receive timely notice regarding the presentation of these charges to a grand jury. We disagree. CPL 190.50(5)(a) requires the prosecution to "accord [a] defendant a reasonable time to exercise his [or her] right to appear as a witness" in a grand jury proceeding where a defendant has been arraigned in

80 A.D.3d 789

local criminal court on charges that will be subsequently presented to a grand jury. However, a motion challenging the reasonableness of the notice provided to the defendant must be made no later than five days after the defendant has been arraigned on the indictment ( see CPL 190.50[5][c]; People v. Rolle, 72 A.D.3d 1393, 1395, 900 N.Y.S.2d 187 [2010]; accord People v. Littebrant, 55 A.D.3d 1151, 1153, 867 N.Y.S.2d 550 [2008], lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 [2009] ). Here, defendant's motion was untimely, as it was not made until February 21, 2008-more than five days after his February 13 arraignment on the indictment-and, therefore, it was properly denied ( see People v. Kinlock, 57 A.D.3d 1227, 1227, 870 N.Y.S.2d 535 [2008]; People v. Boodrow, 42 A.D.3d 582, 583-584, 841 N.Y.S.2d 384 [2007]; People v. Wright, 5 A.D.3d 873, 874, 773 N.Y.S.2d 486 [2004], lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] ).

Defendant also claims that County Court erred by denying his motion to suppress evidence taken from his person at

913 N.Y.S.2d 831

the time of his arrest. Defendant was arrested by Lieutenant Edward Watson of the Watervliet Police Department shortly after the last...