People v. Smays
| Citation | 156 Misc.2d 621,594 N.Y.S.2d 101 |
| Parties | The PEOPLE of the State of New York, v. Ralph SMAYS, Defendant. |
| Decision Date | 06 January 1993 |
| Court | New York Supreme Court |
Robert Baum, The Legal Aid Soc., for defendant.
Robert Morgenthau, Dist. Atty., for the People.
The defendant herein moves to dismiss the indictment on the ground that the grand jury proceeding was defective in that it failed to conform to the requirements of Article 190 of the Criminal Procedure Law to the extent that the integrity of the proceeding was impaired and the defendant prejudiced. [CPL 210.20[1][c]; 210.35[5]] Specifically, the defendant argues that the assistant district attorney interfered with his right to the advice of counsel while testifying before the grand jury under a waiver of immunity. [CPL 190.52]
The defendant has been indicted for the crime of possessing a controlled substance with intent to sell. A police officer testified that he observed the defendant receive money from an unidentified woman and then drop a vial of crack cocaine, which the woman picked up from the ground. The officer further testified that he arrested the defendant within five minutes, finding four dollars and three vials of crack in his possession.
The defendant, accompanied by counsel [CPL 190.52], testified before the grand jury under a waiver of immunity [CPL 190.50[5][b]]. The defendant denied that he had sold cocaine, but testified that he possessed three vials of crack for his own use. The defendant testified that he received the vials from "three guys" whom the defendant knew. When asked to name the three men, the defendant inquired whether he could speak to his lawyer. He was permitted to do so. [1] He then replied that "these people ain't really involved [in] what I am here [for] now." When the question was repeated, the defendant answered without further consulting his attorney. Presumably in an attempt to establish that the defendant possessed intent to sell cocaine, the assistant district attorney asked the defendant how he obtained money. The defendant testified that he received welfare, had saved some three hundred dollars while in a program of work release from State prison where he had been until three months beforehand, and also received money from his family. At one point in the defendant's testimony, the assistant district attorney inquired whether the money the defendant spent to go to movies was "welfare money". The assistant district attorney reviewed the defendant's prior record of four felony and seven misdemeanor convictions in detail; including four robberies, one invalid use of a credit card, a fare beat, a trespass, and criminal possession of controlled substances. The assistant district attorney repeatedly emphasized the robbery convictions. The assistant district attorney then asked the defendant to "tell the grand jury what happened" on the occasion of his arrest for criminal possession of marijuana. The defendant explained that he was arrested when he took a bag of marijuana out of his pocket to give to a friend whom he owed money. The assistant district attorney finally asked the defendant to tell the grand jury what he had been arrested for on the occasion in 1990 when the defendant pled guilty to criminal possession of a controlled substance. The defendant replied that he did not remember. The assistant district attorney then asked whether the defendant had been arrested for criminal sale of a narcotic drug. The defendant repeated that he did not remember. [2] The assistant district attorney then remarked: "Just let the record reflect that the defendant has stated 'I don't remember' as, at the instruction of his, his defense attorney." The assistant district attorney then pointed out that of the four felonies and seven misdemeanors for which the defendant had been convicted, several were for "drug related activities." The defendant generally replied in response to these questions, that he pled guilty to those crimes because he committed them. The defendant volunteered that he did not stay in one place long because "[t]hey lock you up for anything." This prompted the assistant district attorney to ask whether defendant had "ever been locked up for a crime that [he] did not commit." [3] The defendant's answer was somewhat incoherent. He stated: "I have been locked up for crimes, but for this one, I have never been locked up." The assistant district attorney began another question, which he interrupted with an admonition to the defense attorney to "please not talk to your client while I am asking him a question." The assistant district attorney continued to question the defendant about his guilt on all other occasions when he was arrested, save the occasion at issue. Then the following ensued:
Q. Sir, you live in the Bronx; is that correct, sir?
A. Yes, sir, I live in the Bronx.
Q. And after you leave Forty second street, you were going to go uptown to Harlem; is that correct?
A. I was going to go to Harlem.
Q. Which is also where, which is where John, Prince Champ--I don't know, and Cool-Aid [the men from whom the defendant testified he had obtained the crack] live?
A. No, I was going where they was at.
Q. Where were you going, sir?
A. I was going to the park.
Q. What park, sir?
A. Moores Park.
Q. And why were you going to that park, sir?
A. To go there and sit down, watch the kids run around and enjoy myself there. That is where I go for peace and quiet.
Q. Did you ever buy crack there?
A. No, sir.
Q. Where do you buy crack?
A. I don't even know if they sell crack there now.
Q. Where do you buy crack?
A. Where do I buy my cracks at?
Q. Yes.
A. Forty-second street.
Assistant district attorney: "Please let the record reflect that the defense attorney is instructing her client as to what answer he should provide. And Miss [defense counsel], now, I instruct you now that you are not to provide your client with answers and you are not testifying, Miss [defense counsel]. Your client is testifying.
Miss [defense counsel], do you understand that? Would you please indicate on the record, Miss [defense counsel], whether or not you understand my instruction?
A. I wanted to speak to her, sir.
Q. Do you wish to further consult with your attorney?
A. At this moment, no sir.
The questioning about the places and persons from whom the defendant obtained crack continued. Then the following occurred Q. Sir, when you purchase crack cocaine, isn't it a fact that it often happens that you will give them money and that they in turn will drop that cocaine to the ground, and that you will pick it up?
A. No, sir. As a matter of fact, I don't know. I don't remember no crack falling on the floor. I don't remember nothing fall on the floor because when I buy something, they gave it to me right in my hand. And that is uptown and downtown.
Q. Is that your answer, sir? Or is that the defense attorney's answer.
A. That is my answer, sir.
After the defendant testified, the assistant district attorney recalled the officer who had initially testified. The assistant district attorney paraphrased the defendant's testimony and asked the officer: "is that accurate testimony?". The officer replied that the defendant's testimony was not accurate.
CPL 190.52 provides, in pertinent part, that The statute represents a balance between concern for fairness to the potential defendant before the grand jury and concern that the presence of counsel for the defendant would interfere improperly with the grand jury's proceedings. This balance was achieved by limiting the role of counsel to being present with the witness to advise the witness, but otherwise to not participate in the proceedings. Such advice as counsel gives the witness before the grand jury may not interfere improperly with the proceedings of the grand jury. [See Matter of People v. Riley, 98 Misc.2d 454, 456-457, 414 N.Y.S.2d 441 [Sup.Ct. Queens Co. 1979]].
The role of counsel under the statute has been defined as "to give an opinion, counsel or make recommendations." [Id. at p. 458, 414 N.Y.S.2d 441] As noted by another court, in this context "[e]ffective legal counsel implicitly guarantees a witness the full benefit of a lawyer's advice." [Matter of Lief v. Hynes, 98 Misc.2d 817, 825, 414 N.Y.S.2d 855 [Sup.Ct. Queens Co. 1979]] The Court of Appeals, in a decision rendered prior to enactment of the statute but no less pertinent to these proceedings, noted that given the investigatory as opposed to accusatory, purpose of a grand jury presentation, a witness has no right to be represented by counsel as an advocate before the grand jury. Counsel has a more limited role in this context, as advisor of the witness in regard to decisions the witness is called upon to make concerning the witness' legal rights in the grand jury. [People v. Ianniello, 21 N.Y.2d 418, 424, 288 N.Y.S.2d 462, 235 N.E.2d 439] The Court identified three legal rights of a witness which may be critically affected before the grand jury, and as to which the witness should be entitled to consult with counsel: the decision whether to assert the privilege against self incrimination; the decision whether to answer a question that has no apparent bearing on the subject of the investigation; and the decision whether to invoke a testimonial privilege, such as the attorney-client privilege. These are legal matters that are likely to be raised by the questions the client will be called upon to answer during the grand jury proceeding. There are other matters about which a witness before the...
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