People v. Watkins

• Decision Date: 08 May 2007
• Docket Number: 769.
• Citation: 40 A.D.3d 290,837 N.Y.S.2d 7,2007 NY Slip Op 03978
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARL WATKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 290

837 N.Y.S.2d 7

2007 NY Slip Op 03978

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARL WATKINS, Appellant.

769.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 8, 2007.

Judgment, Supreme Court, New York County (Micki A. Scherer, J., on CPL 190.50 [5] dismissal motion; Jeffrey M. Atlas, J., at suppression hearing; Edward J. McLaughlin, J., at jury trial and sentence), rendered March 30, 2004, convicting defendant of two counts each of burglary in the second degree, attempted burglary in the second degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

The People did not deprive defendant of his right to testify before the grand jury. The record supports the motion court's conclusion that defense counsel's actions were not diligent in arranging for her client's grand jury appearance. Counsel failed to return calls to the prosecutor; failed to call the prosecutor promptly after confirming that defendant wanted to testify; called the prosecutor's office to leave a message only after she had received a message indicating that the prosecutor was no longer at her office, but was on her way to the grand jury; and inexplicably waited in a courtroom, questioning clerks about the prosecutor's actions, knowing full well that the prosecutor had left the message that she was on her way to the grand jury. Under these circumstances, we conclude that the prosecutor's considerable and repeated efforts to contact defense counsel, even going so far as postponing the grand jury presentation on two occasions, more than met the People's statutory obligation to provide defendant with a reasonable and meaningful opportunity to testify before the grand jury. Moreover, in our view, defense counsel's deliberately dilatory and evasive conduct was nothing more than a blatant attempt to use the People's obligations under CPL 190.50 as an opportunity for gamesmanship conduct of which we strongly disapprove (People v Crisp, 246 AD2d 84, 86-87 [1998], lv dismissed 93 NY2d 898 [1999]; see also People v Edwards, 283 AD2d 219 [2001], lv denied 96 NY2d 918 [2001]). Nor do counsel's failures entitle defendant to a new trial on the ground of ineffective assistance (see People v Wiggins, 89 NY2d 872, 873 [1996]).

The hearing court properly denied defendant's suppression motion. Based on a combination of factors, the police had reasonable suspicion justifying a stop. Defendant was the only person present in the area of a burglary, which area had been sealed off; he was wearing a red apron under a raincoat, where the perpetrator had been described as wearing a red jacket; he attempted to walk away from the officer, and he was inappropriately dressed for the warm sunny weather, suggesting an effort to conceal the identifying red garment (see People v Daniels, 304 AD2d 478 [2003], lv...