People v. Thomas

• Decision Date: 30 March 1989
• Citation: 148 A.D.2d 883,539 N.Y.S.2d 693
• Parties: The PEOPLE of the State of New York, Respondent, v. Levi THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 693

539 N.Y.S.2d 693

148 A.D.2d 883

The PEOPLE of the State of New York, Respondent, v. Levi THOMAS, Appellant.

Supreme Court Appellate Division Third Department.

March 30, 1989.

James D. Clute, Plattsburgh, for appellant.

Penelope D. Clute, Dist. Atty. (Lois McS. Webb of counsel), Plattsburgh, for respondent.

Before KANE, J.P., and CASEY, LEVINE, MERCURE and HARVEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Clinton County (Feinberg, J.), rendered October 5, 1987, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the third degree.

Defendant was indicted with two other inmates at Clinton Correctional Facility in Clinton County for criminal possession of a weapon in the third degree (Penal Law § 265.02) based upon an incident which occurred at the facility on March 31, 1985. According to the testimony of correction officers who witnessed the incident, a fight broke out in the prison yard and a group of inmates were observed stabbing another inmate, Benjamin Shim. The group dispersed when correction officers arrived at the scene and defendant, who had not been part of the group, was observed standing nearby. One of the inmates involved in the fight, Steven Westbrook, allegedly dropped his weapon as he fled and, according to the correction officers, defendant grabbed Westbrook's weapon and attempted to run from the area. When defendant was ordered to halt and drop the weapon, he turned around and took several steps toward the correction officers, waving the knife in a threatening manner. Defendant was again ordered to drop the knife and, after a standoff lasting a minute or two, he finally complied with the order.

Defendant was previously tried with Westbrook and was convicted. However, this court reversed defendant's conviction on the ground that defendant was improperly shackled during the trial (125 A.D.2d 873, 510 N.Y.S.2d 460). Defendant was convicted on retrial and sentenced to 3 to 6 years' imprisonment. This appeal by defendant ensued.

Defendant's first contention on appeal is that County Court erred in refusing to rule on the merits of his motion to dismiss the indictment made prior to the second trial. By this motion, defendant sought to dismiss the indictment on the ground that there was insufficient evidence presented to the Grand Jury and, also, that the indictment was defective in that it did not contain a plain and concise statement asserting facts supporting every element of the crime charged (see, CPL 200.50[7] ). County Court summarily denied defendant's motion, finding that the matters raised therein were either moot, waived or res judicata based upon the court's denial of a similar motion made prior to the first trial.

As to defendant's contention that the indictment was defective due to an inadequate factual statement, we note that this specific challenge was not raised in the motion to dismiss the indictment made prior to the first trial. Although County Court was technically incorrect in refusing to address the merits on the basis that this issue had already been litigated and decided (cf., People v. Miller, 65 N.Y.2d 502, 511, 493 N.Y.S.2d 96, 482 N.E.2d 892 cert. denied 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300) or, alternatively, that it had been waived by defendant's failure to raise this objection in his first motion ( see, People v. Nitzberg, 289 N.Y. 523, 530-531, 47 N.E.2d 37; People v. Pariser, 50 Misc.2d 727, 728-729, 271 N.Y.S.2d 26), this error was harmless in light of our conclusion that the indictment and bill of particulars gave defendant adequate notice of the crime charged ( see, People v. Morris, 61 N.Y.2d 290, 293-294, 473 N.Y.S.2d 769, 461 N.E.2d 1256).

Defendant's contention that there was insufficient evidence presented to the Grand Jury is not properly before us on appeal (CPL 210.30[6] ) and defendant is limited to challenging only the legal sufficiency of the trial evidence (see, People v. Ali, App.Div., 538 N.Y.S.2d 333; People v. Shapiro, 117 A.D.2d 688, 689, 498 N.Y.S.2d 428 lv. denied 67 N.Y.2d 950, 502 N.Y.S.2d 1044, 494 N.E.2d 129). Based upon the testimony of the correction officers who witnessed the incident and,...