People v. Welsh

• Decision Date: 16 October 1986
• Citation: 124 A.D.2d 301,508 N.Y.S.2d 278
• Parties: The PEOPLE of the State of New York, Respondent, v. William WELSH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 278

508 N.Y.S.2d 278

124 A.D.2d 301

The PEOPLE of the State of New York, Respondent, v. William WELSH, Appellant.

Supreme Court, Appellate Division,

Third Department.

Oct. 16, 1986.

Robert J. Krzys, Amsterdam, for appellant.

Guy P. Tomlinson, Dist. Atty. (James E. Conboy, of counsel), Amsterdam, for respondent.

Before MAIN, J.P., and CASEY, WEISS, LEVINE and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Montgomery County (White, J.), rendered August 28, 1984, upon a verdict convicting defendant of the crimes of grand larceny in the third degree, criminal possession of stolen property in the second degree and unauthorized use of a motor vehicle in the third degree.

On November 21, 1983, defendant was apprehended in a parking area of the Thruway interchange outside the City of Amsterdam, Montgomery County, while attempting to drive away an automobile belonging to a Thruway employee. When the auto stalled, two employees removed defendant from the car and called the State Police, who placed him under arrest. Following the filing of a felony complaint charging defendant with grand larceny in the second degree, a preliminary hearing was scheduled for December 27, 1983. On that date, the Town Justice of the Town of Florida reduced the charge to unauthorized use of a motor vehicle in the third degree, without opposition from the prosecutor. However, at that point, the prosecutor obtained an adjournment pursuant to CPL 170.20 for the purpose of presenting the case to a Grand Jury. Previously, on or about December 14, 1983, the prosecutor had notified defendant of an impending Grand Jury presentation and advised that defendant had until January 3, 1984 to assert his right to appear and testify (see, CPL 190.50). Although defendant's notice was dated and mailed January 3, it was postmarked January 5 and not received by the District Attorney until January 6. On January 4, the Grand Jury voted to indict defendant for grand larceny in the second degree, criminal possession of stolen property in the first degree and unauthorized use of a motor vehicle in the third degree. The indictment was not filed until January 30, 1984. During the course of the trial, the value of the vehicle was stipulated to and the case submitted to the jury on the amended counts of grand larceny in the third degree, criminal possession of stolen property in the second degree and unauthorized use of a motor vehicle in the third degree. Defendant was convicted on the amended counts, and after the denial of his motion to vacate the verdict, the instant appeal ensued.

Defendant first contends that the failure to arraign him promptly after the Town Justice reduced the felony charge to a misdemeanor deprived him of the right to plead guilty to the reduced charge. We disagree. At this stage of the proceeding, the District Attorney was entitled to request an adjournment to present the matter to the Grand Jury (see, CPL 170.20 People ex rel. Kehoe v. Harkness, 50 A.D.2d 1010, 376 N.Y.S.2d 950, lv. denied 40 N.Y.2d 809, 392 N.Y.S.2d 1026, 360 N.E.2d 1108), and the court was obligated to comply (People v. Barkin, 49 N.Y.2d 901, 903, 428 N.Y.S.2d 192, 405 N.E.2d 674). Thereafter, defendant had no due process right to circumvent the filing of an indictment by pleading guilty to the reduced charge.

Nor is there merit to defendant's contention that he was deprived of his right to testify before the Grand Jury. By giving defendant until January 3, 1984 to request an opportunity to testify before the Grand Jury, the District Attorney clearly provided defendant with a reasonable opportunity to exercise his right to appear (see, CPL 190.50 cf. People v. Gini, 72 A.D.2d 752, 421 N.Y.S.2d 269). The difficulty with this case is that while an indictment was voted on January 4, 1984, it was not filed until January 30, 1984. Since the District Attorney concededly received defendant's request to testify on January 6, 1984, the novel question presented is whether defendant retained an unqualified right to appear prior to the filing of the indictment, notwithstanding his failure to comply with the District Attorney's notification. We think not. The very purpose of CPL 190.50(5) is to prevent the District Attorney from secretly removing a case from a lower court into a Grand Jury where the defendant, as here, has been arraigned in the local court on a currently undisposed of felony complaint (see, People v. Otello, 48 A.D.2d 169, 170, 368 N.Y.S.2d 592). ^* Here, the element of surprise is clearly absent for defendant was given ample notice of the impending Grand Jury presentation (cf. People v. Phillips, 88 A.D.2d 672, 673, 450 N.Y.S.2d 925). In our view, the People fully complied with their statutory duty under CPL 190.50(5)(a) (cf. People v. Ferrara, 99 A.D.2d 257, 260-261, 472 N.Y.S.2d 407), and having failed to timely respond, defendant waived his right to testify before the Grand Jury.

We further find the evidence sufficient to support the verdict. Defendant's two-fold argument that he was too intoxicated to form the requisite intent to commit the crimes and that he never intended to permanently appropriate the automobile simply raised questions of fact for the jury to resolve (see, People v. Handly, 102 A.D.2d 922, 923, 477 N.Y.S.2d 512; see also, People v. Cruickshank, 105 A.D.2d 325, 484 N.Y.S.2d 328, affd 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530). The record amply supports the jury's determination on both issues. Defendant was en...