People v. Smith
| Decision Date | 22 December 1997 |
| Citation | 669 N.Y.S.2d 163,175 Misc.2d 364 |
| Parties | , 1998 N.Y. Slip Op. 98,055 The PEOPLE of the State of New York, Plaintiff, v. Ugan SMITH, Defendant. |
| Court | New York County Court |
Denis E. Dillon, District Attorney of Nassau County, Mineola (Risco Lewis, of counsel), for plaintiff.
Legal Aid Society, Hempstead (Stuart Austin, of counsel), for defendant.
The defendant, Ugan Smith, by his attorney, Stuart Austin, Esq., has moved this Court for an inspection of the Grand Jury minutes by the Court and by the defendant and for an order dismissing the indictment after such inspection, as well as an order granting defendant transactional immunity due to his grand jury testimony, and further for an order suppressing all statements made by the defendant to law enforcement personnel. The District Attorney, by Risco Lewis, Esq., has opposed this application.
The defendant was indicted on March 7, 1996 on one count of Attempted Burglary in the Second Degree, a class "D" violent felony. Thereafter, on June 4, 1996, the defendant was found to be an incapacitated person by this Court pursuant to Article 730 of the Criminal Procedure Law. He was returned to the Court on June 17, 1997, after having been found fit to proceed.
This Court has inspected the Grand Jury minutes in camera and finds that it is not necessary to release the minutes or any portion thereof to the defendant's attorney to assist the Court in making its determination (CPL Section 210.30(3)).
Upon inspection of the Grand Jury minutes, this Court finds that the evidence before the Grand Jury was legally sufficient to support the crime charged in the indictment (CPL Section 210.30).
Further, the Grand Jury proceeding was not defective; proper legal advice and adequate instructions were given by the District Attorney; the composition of the grand jury was sufficient and in no way was the proceeding violative of the defendant's constitutional rights (CPL Section 210.35(5) and section 190.25(6)).
The defendant elected to exercise his statutory right pursuant to CPL Section 190.50 and testify before the Grand Jury under a waiver of immunity. The waiver was ultimately executed albeit after an extended question and answer session and several intervening conferences with his counsel. While it certainly appears from the transcript that the defendant was having some difficulty during the waiver procedure, should that lack of understanding now require that he be granted transactional immunity on the basis of a waiver that may not have been executed in a knowing and intelligent manner?
The defendant's case was initially assigned to the Hon. Marvin Goodman. Counsel for defendant has alleged that Justice Goodman failed to order an examination of the defendant pursuant to CPL Article 730 despite his request and despite the report that had been prepared by the Social Work Bureau of the Legal Aid Society. Defendant contends that Justice Goodman did not question the defendant before rejecting counsel's request for a 730 exam. However, the District Attorney indicates that there was some questioning by the Court of the defendant. It is unclear as to what transpired on the record regarding this issue before Justice Goodman as neither the movant nor the respondent has provided any transcripts of those proceedings. It is interesting to note however that the report submitted to Justice Goodman by the defendant does not in any way allege that the defendant did not know the roles of his lawyer, the prosecutor and the judge or that he was not able to assist in his own defense.
Defendant alleges that the applications for a 730 exam took place before Justice Goodman on January 3 and 4, 1996. A review of the Court file reveals that the defendant waived his case to the Grand Jury on January 19, 1996. The defendant's case was not presented to the Grand Jury until March 5, 1996, approximately two months after defendant's initial requests for a 730 exam yet there is no indication that at any time after the case was scheduled for the Grand Jury that counsel sought the assistance of the judge assigned for that term to the Grand Jury. No additional requests for a 730 exam were made and defendant testified in the Grand Jury under a waiver of immunity.
The right of a defendant to testify before the Grand Jury is a statutory one and not a right of constitutional dimension. People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996). The statute sets forth the only circumstances under which a defendant may exercise this option, i.e., he must serve proper notice, appear at the given time and place and execute a waiver of immunity. CPL Section 190.50(5). The waiver of immunity is something offered by the defendant in exchange for an opportunity to testify before the Grand Jury. If a defendant does not so offer, or going one step further, it would seem that if one is not able to so offer a waiver due to some difficulty or disability, then he may not testify before the Grand Jury. In this case, the defendant, who was represented by competent and experienced counsel, chose to waive immunity and signed the document in the presence of the Grand Jury. Prior to signing that document, counsel for defendant never sought the intervention or advice of the Grand Jury judge. Instead, despite his protestations now, he permitted his client to continue to execute the waiver. Counsel had to know beforehand that his client might have difficulty with the waiver of immunity but he still presented him in the Grand Jury. Surely counsel had discussed defendant's rights and options with him prior to this date and there was sufficient understanding by defendant so that he insisted on exercising his right to so testify. By permitting his client to go forward, counsel implicitly acknowledged defendant's competence.
The fact that the earlier requested 730 exam was not ordered by the Court is not dispositive of the issues raised in this motion. That request was made some 60 days before the defendant testified and is accordingly not relevant on the issue of defendant's competency before the Grand Jury. However, it can be deduced that the Court's action in not ordering an exam was based upon its conclusion that the defendant did not meet the prerequisites of CPL 730.30(1). In...
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People v. Bones
...one is not able to so offer a waiver due to some difficulty or disability, then he may not testify before the Grand Jury" (People v Smith, 175 Misc 2d 364, 366 [1997]). However, "[e]ven a mentally ill person may give evidentiary testimony provided that individual has sufficient intelligence......
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People v. Bones
...if one is not able to so offer a waiver due to some difficulty or disability, then he may not testify before the Grand Jury" (People v Smith, 175 Misc 2d 364, 366). However, "[e]ven a mentally ill person may give evidentiary testimony provided that individual has sufficient intelligence to ......