People v. Smith
| Decision Date | 10 July 2019 |
| Docket Number | Ind.No. 868/11,2014–11907 |
| Citation | 174 A.D.3d 655,104 N.Y.S.3d 692 |
| Parties | The PEOPLE, etc., Respondent, v. Lamont SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
174 A.D.3d 655
104 N.Y.S.3d 692
The PEOPLE, etc., Respondent,
v.
Lamont SMITH, Appellant.
2014–11907
Ind.No. 868/11
Supreme Court, Appellate Division, Second Department, New York.
Argued—May 3, 2019
July 10, 2019
Paul Skip Laisure, New York, N.Y. (Joshua M. Levine, Brooklyn of counsel), for appellant, and appellant pro se.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
On April 2, 2011, the defendant, along with two codefendants, committed a push-in gunpoint robbery inside an apartment, and physically assaulted two of the complainants. Upon responding to a 911 call, police officers observed what appeared to be blood stains outside the complainants' apartment and a bloody shoeprint near a door to a stairwell. The officers tracked a trail of blood to an apartment two floors below. When the police officers knocked on that apartment door, it was answered by Monet Paige, who resided in that apartment. In response to the officers' questioning, Paige, appearing nervous and evasive, informed them that three males were inside the apartment with her two children. The officers requested that, for safety reasons, all of the occupants come out of the apartment into the hallway. Paige agreed to bring out her older child, but refused to bring out her infant child, and informed the officers that the three male occupants refused to come out as well. Subsequently, after an officer observed the reflection, in a window, of a male holding a crying infant inside the apartment, the officers made a warrantless entry into the apartment to protect the child, and apprehended the defendant and the codefendants. Proceeds of the crime were found in plain view inside the apartment, as were sneakers stained with what appeared to be blood. A firearm was recovered on the ground underneath the apartment window outside the building. Following a pretrial hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress the physical evidence. At trial, the People introduced DNA evidence linking the defendant to the crime.
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of his right to testify before the grand jury, is without merit. Criminal Procedure Law § 190.50(5)(a) provides a defendant with the right to testify before the grand jury "if, prior to the filing of any indictment ... in the matter, he serves upon the district attorney of the county a written notice making such request." Notwithstanding the defendant's
allegations that he signed a waiver of immunity and that he told his attorney of his desire to
testify before the grand jury, there is no evidence in the record that either he or his attorney served the required written notice on the District Attorney (see CPL 190.50[5][a] ). Consequently, we agree with the denial of the defendant's motion to dismiss the indictment on the ground that he was not accorded an opportunity to appear and testify before the grand jury (see id. ; CPL 210.20[1][c] ; 210.35[4]; People v. Sain , 111 A.D.3d 964, 976 N.Y.S.2d 107 ; People v....
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