People v. Salvador
| Decision Date | 18 May 1998 |
| Citation | 176 Misc.2d 915,675 N.Y.S.2d 507 |
| Parties | , 1998 N.Y. Slip Op. 98,310 The PEOPLE of the State of New York, Plaintiff, v. Maria SALVADOR, Defendant. |
| Court | New York Supreme Court |
S. Michael Musa-Obregon for defendant.
Richard A. Brown, District Attorney of Queens County (Raphael E. Savino, of counsel), for plaintiff.
Defendant's motion, submitted May 7, 1998, seeks a dismissal of the indictment upon a claim that
(1) her right to have counsel present in the Grand Jury (CPL § 190.52) was violated and
(2) her right to testify in the narrative was impaired by actions of the District Attorney.
At the outset the Court notes that it has reviewed the Grand Jury minutes in its entirety.
Defense counsel represents without contradiction that the New York City Department of Corrections did not produce his client to testify until 4:20 P.M. on April 9, 1998 at which time he began to speak to her in the counsel room. It is undisputed, that two detective investigators under the direction of the presenting Assistant District Attorney entered the room removed the defendant, without allowing her to finish the conference with her attorney, and placed her in the Grand Jury room. The only matter in contention is the amount of time claimed the attorney was with the defendant--defense claims a few minutes--the People twenty minutes.
In any event, the People attempt to justify their behavior by purported concerns relating to Grand Jurors' future attendance in light of the upcoming religious observance of Easter and Passover and "concerns" relating to CPL § 180.80, the provisions of which the defendant represents she was willing to waive. It would seem that the Assistant District Attorney acted in haste, simply because he wanted to conclude as soon as possible.
As just indicated, defendant was brought to the Grand Jury room where she testified with her attorney being present.
The role of an attorney in the Grand Jury is limited by statute (CPL § 190.52) and precludes him from taking any role in the proceeding beyond merely giving advice. (People v. Davis, 119 Misc.2d 1013, 465 N.Y.S.2d 404). Thus, an attorney may not object or interfere with the Grand Jury proceedings, or give his client strategic advice, nor may he even advise his client in such a manner that may be overheard in the Grand Jury and have an impact on its deliberations. (People v. Smays, 156 Misc.2d 621, 626-627, 594 N.Y.S.2d 101)
If defendant's counsel objected to the conduct of the prosecution, particularly to the interruptions of his client's narrative and evidentiary rulings, then the proper procedure would have been to request a recess from the foreperson in order to seek a ruling from the Court supervising the Grand Jury (People v. Smays, supra p. 627, 594 N.Y.S.2d 101). Instead defense assumed a more active role and attempted to engage in colloquy with the Assistant District Attorney.
Similarly, if the prosecution objected to the active role assumed by defense counsel then he should not have unilaterally excused counsel from the Grand Jury room, but instead sought a ruling from the supervising court. (People v. Smays, supra p. 630, 594 N.Y.S.2d 101)
The District Attorney by removing defendant from the counsel room and placing her in the Grand Jury room prior to completion of her Grand Jury preparation combined with the removal of the attorney from the Grand Jury proceedings before its completion interfered with and denied defendant her right to counsel provided by CPL § 190 .52.
The Criminal Procedure Law designates both the District Attorney and the court as legal advisors to the Grand Jury (see CPL § 190 .25[6] ). Because Grand Jury proceedings are conducted by the prosecutor alone, this function confers upon the prosecutor broad powers and duties, as well as wide discretion in presenting the People's case (see People v. DiFalco, 44 N.Y.2d 482, 487 [406 N.Y.S.2d 279, 377 N.E.2d 732]). In addition to providing legal instruction to the Grand Jury, the District Attorney determines what evidence to present to that body and what evidence should be excluded (see id., at 486-487 [406 N.Y.S.2d 279, 377 N.E.2d 732]).
The prosecutor's discretion during Grand Jury proceedings, however, is not absolute. As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus 'charged with the duty not only to secure indictments but also to see that justice is done' (People v. Lancaster, 69 N.Y.2d [20] at 26 [511 N.Y.S.2d 559, 503 N.E.2d 990], supra; see also People v. Pelchat, 62 N.Y.2d [97] at 105 [476 N.Y.S.2d 79, 464 N.E.2d 447], supra). With this potent authority, moreover, comes responsibility, including 'the prosecutor's duty of fair dealing' (People v. Pelchat, 62 N.Y.2d at 104 [476 N.Y.S.2d 79, 464 N.E.2d 447], supra). As this Court has explained, '[t]hese duties and powers, bestowed upon the ...
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People v. Hunter
...119 A.D.3d 706, 706, 988 N.Y.S.2d 697 [2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Salvador, 176 Misc.2d 915, 916, 675 N.Y.S.2d 507 [Sup. Ct., Queens County 1998] ). With respect to his second attorney's failure to seek a Dunaway hearing, the attorney......