People v Pressley
Annotate this CaseDecided on June 6, 2006
Supreme Court, Kings County
The People of the State of New York
against
Carl Pressley, Defendant.
5387/05
Edward Purce, Esq.
Assistant District Attorney
For the People
Jeff Adler, Esq.
John M. Leventhal, J.
The defendant moves for an order granting dismissal of the indictment pursuant to
CPL§§ 210.20 (1) (c) and 210.35 (4). The Court has considered the defendant's moving papers, the People's answer, and reviewed the Court file in deciding this motion. BACKGROUND
The defendant is charged with, inter alia, Attempted Murder in the Second Degree as he is alleged to have abducted and to have shot his ex-girlfriend. The incident allegedly occurred on July 28, 2005. The defendant was arrested the same day. The Grand Jury voted on July 28 and 29, 2005, to indict the defendant for the crimes herein. The defendant was arraigned in the hospital on a felony complaint on August 4, 2005. The defendant was then represented by an attorney from the Legal Aid Society. The defendant contends that on that date he expressed his desire to his then attorney to testify before the Grand Jury.
The case was called in Part AP1of the Criminal Court on August 5, 2006.. No Grand Jury notice was served by the defense counsel despite the defendant's stated wishes. The People announced that an indictment had been voted and the case was transferred to Supreme Court for arraignment.
The indictment was subsequently filed on August 18, 2005. The defendant maintains that at all times he wanted to testify before the Grand Jury and that at no time did he even express his desire to withdraw his request. The defendant contends that he was precluded from exercising his right to appear as a witness. [*2]
The People in their answer stated that the defendant filed a pro se motion dated August 30, 2005, seeking dismissal of the indictment because his right to testify had been denied. Although there is an affidavit of service, purportedly serving the Court, attached to the moving papers, the motion was either not served upon the court or was not received by the Court. The defendant was arraigned on September 21, 2005. No subsequent motion to dismiss the indictment pursuant to CPL§190.50 was made to this Court.
On February 22, 2006, well after discovery was turned over and three months after the Court rendered its decision on the sufficiency of the Grand Jury minutes, the defendant claimed that he filed a motion to dismiss based on the violation of his statutory right to testify before the Grand Jury pursuant to CPL§190.50.
The Court appointed new counsel to relieve the Legal Aid Society, as there was an apparent conflict of interest. The defendant's newly assigned attorney filed a motion to dismiss on April 4, 2006.
THE LAW
The failure to file a timely motion to dismiss an indictment based upon the denial of the defendant's statutory right testify before the Grand Jury must be denied without reaching the merits where a motion was not made within five days of defendant's arraignment on the indictment, as required by CPL §190.50 (5) (c) (People v. Onyeabor, 9 Misc 3d 310 [2005]).
The defendant, instead, makes this motion to dismiss based upon the ineffective assistance of counsel in that the defendant's desire to testify before the grand jury was not effectuated by his former attorney.
Assuming that defendant's CPL §190.50 motion was properly filed with this Court sometime after August 30, 2005, but prior to defendant's arraignment on September 21, 2005, the court notes that such motion would be without legal effect. CPL §210. 20 entitled "Motion to dismiss or reduce indictment" provides in pertinent part: "After arraignment upon indictment, the Superior Court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: (c) the Grand Jury proceedings was defective, within the meaning of section 210.35." (emphasis added) CPL§210.35 reads; " A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when: 4. The defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50."
Thus it is clear that defendant's purported C.P.L.§190.50 motion was without legal effect, as any motion to dismiss must be made "after arraignment upon an indictment" and not before the arraignment.
Assuming arguendo, however, that defendant's pro se motion dated August 30, 2005, was properly and timely served and filed, the Court would nonetheless deny defendant's motion to dismiss as no notice to testify was ever served and filed. The defendant's motion to dismiss based on ineffective assistance of counsel is denied for the reasons stated below. .
The failure of an attorney to honor a defendant's desire to testify at the Grand Jury proceeding is not, in and of itself, ineffective assistance of counsel. (People v. Wiggins, 89 NY2d, 872, 873 [1996]); People v. Venable, 7AD3d 647, 648 [2004]); People v. Gibson, 2AD3d 969, 973 [2003]); People v. Todd, 306 AD2d 504, 504 [2003]); People v. Delcerro, 299 AD2d 160, 161 [2002]). This is so because when a defendant testifies before the Grand Jury, such [*3]testimony provides the prosecution with a preview of the defendant's case and possible material with which to cross examine (impeach) the defendant at trial. (People v. Petterson, 11 AD3d 336, 337 [2004]); Jenkins v. New York State, 2003 WL 21804846 *2, 2003 US. Dist LEXIS 13596 *5 (2003 [US District Court, SD NY, MARTIN, J.]). Recently, the Second Department upheld counsel's withdrawal of defendant's notice of his intension to testify before the Grand Jury though done without defendant's consent or approval and even without consulting defendant. (People v. Nobles, NYLJ, 5-22-2006, p. 30 col.1).
Additionally, in order to establish a constitutional violation, the defendant must show that had the defendant testified before the Grand Jury, the result would have been different. (People v. Dixon, 19 AD3d 131, 132 [2005]); People v. Tapp, 10 AD3d 559, 560 [2004]); People v. Mobley, 309 AD2d 605, 605 [2003]); see, also Peterson, 11 AD3d at 337). The defendant here has failed to demonstrate or even allege that his testimony would have changed the vote of the Grand Jury.
Defendant's other claim regarding the procedure employed by the People in securing a true bill on certain counts on one day and presenting additional evidence and obtaining a true bill on additional counts on a second day is without merit. This procedure has been approved by our Court of Appeals. (see, People v. Cade 74 NY2d. 401 [1989]).
CONCLUSION
Accordingly, the motion to dismiss the indictment is denied in all respects.
EN T E R
________________
J. S. C.
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