People v Green
Annotate this CaseDecided on February 22, 2012
County Court, Sullivan County
The People of the State of New York, Plaintiff,
against
Barry Green, Defendant.
215S-2010
APPEARANCES:Joel M. Proyect, Esq.
P.O. Box 157
Parksville, NY 12768
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
LHC Sullivan County Courthouse
414 Broadway
Monticello, New York 12701
By: Bonnie M. Mitzner, ADA, of counsel
Attorney for the People
Frank J. LaBuda, J.
The defendant was indicted by sealed indictment on one count: Penal Law, § 205.25, Promoting Prison Contraband in the First Degree.
A petit jury returned a guilty verdict on February 4, 2011.
Sentencing has been adjourned for defendant to make a 330 motion. However, since the defendant changed attorneys multiple times his sentencing has also been adjourned to accommodate him.
The defendant originally submitted what purports to be a pro se letter/motion and [*2]affidavit dated and notarized December 19, 2011 with affidavit of service upon the People. Said papers were received by the Sullivan County Court Clerk on January 5, 2012.
The People did not respond thereto.
Defendant, through his attorney, moved by Order to Show Cause (OSC) dated January 6, 2012 for CPL §330.30 relief to vacate his jury conviction prior to sentence.
The People submit an affirmation in opposition.
Thereafter, defendant submitted a second pro se filing. Said filing consisted of an unnotarized supplemental "affidavit" dated January 13, 2012, in support of the his original Pro Se CPL §330.30 letter/motion.
The People submitted an affirmation in opposition to defendant's pro se affidavit in support of the CPL § 330.30 motion.
This Court will consider defendant's attorneys submission and the People's responses thereto. The defendant's pro se papers will not be considered.
Defendant, now, through his attorney, seeks CPL §330 relief
arguing that; 1. the District Attorney's office failed to provide defendant with an opportunity to testify before the Grand Jury after defendant submitted notice pursuant to Criminal Procedure Law, §190.50(5)(c) and 2. The District Attorney's office proceeded by sealed indictment, rather than by filing a felony complain in local justice court in order to deny defendant an opportunity to be heard by the Grand Jury.
Defendant's pro se arguments center around ineffective assistance of counsel. Although not considered herein, as defendant's attorney has submitted a proper 330 motion and defendant's motion is therefore duplicative, this Court has examined defendant's pro se arguments and finds no merit thereto.
Based upon the evidence adduced at trial and the arguments held herein, the defendant's OSC to set aside the jury verdict is denied.
On or about the 9th day of September, 2009, corrections officers at the Sullivan Correctional Facility in Fallsburgh, New York, found defendant to be in possession of a cell phone and cell phone charger. At that time, the matter was administrative in nature and no criminal charges were filed. Defendant, however, anticipating there might eventually be criminal charges filed against him, purportedly wrote a letter to the Sullivan County District Attorney indicating defendant's wish, pursuant to Criminal Procedure Law, §190.50(5), to testify before a Grand Jury, should one be convened to investigate this matter. Defendant's letter was dated October 28, 2009 and notarized January 4, 2010. The Sullivan County District Attorney's office [*3]maintains it did not receive defendant's's letter and had no knowledge of defendant's desire to testify before the Grand Jury until the present motion was filed in January, 2012.
On October 20, 2010, the People legally obtained a sealed indictment charging defendant with promoting prison contraband in the first degree. On November 3, 2010, the defendant was produced at the Sullivan County Court, the indictment was unsealed, and defendant was arraigned. The Court assigned Legal Aide to represent the defendant. Trial counsel subsequently and timely filed an omnibus motion seeking Huntley, Sandoval and Ventimiglia hearings, as well as inspection of the Grand Jury minutes and dismissal of the indictment on the ground there was insufficient evidence before the Grand Jury.
The matter went to trial on February 3, 2011, and on February 4, 2011, a jury convicted defendant of Promoting Prison Contraband in the First Degree.
A court may set aside a verdict after conviction and prior to sentencing upon any ground appearing on the record, which, if raised upon appeal, would require reversal or modification by an appellate court as a matter of law. CPL §330.30(1).
A trial court is limited under CPL § 330 to examining the evidence as a matter of law whereas an appellate court may delve in matters of fact. See, People v. Carter, 63 NY2d 530 (1984).
A trial judge may set aside a verdict under CPL §330 when the evidence was not legally sufficient to sustain a guilty verdict (matter of law) but may not set aside a verdict under a theory that the finding of guilt was against the weight of the evidence (matter of fact). See, CPL § 330.30; CPL § 470.15.In deciding a 330 motion, every instance must be judged in favor of the People. People v. Floyd, 176 AD2d 554 (1st Dept. 1991) lv denied 79 NY2d 829 (1992).
The standard of appellate review in cases of legal sufficiency is whether the evidence adduced at trial could lead to the conclusion reached by a rational person sitting as the finder of fact, when reviewed in the light most favorable to the People. People v. Hines, 97 NY2d 56 (2001).
After reviewing the trial evidence, the arguments herein and after due deliberation had herein, this Court finds that there was legally sufficient evidence adducted at trial to sustain the guilty verdict in this case.
The defendant's claim that the District Attorney's office failed to provide defendant with an opportunity to testify before the Grand Jury after defendant submitted notice pursuant to CPL §190.50(5)(c) is untimely and not a ground for vacatur under CPL §330.30.
CPL §190.50(5)(c) states that a defendant who wishes to make a motion to dismiss an [*4]indictment on the ground he or she was not afforded the right to testify "must be made not more than five days after the defendant has been arraigned upon the indictment." In this case, the defendant was arraigned on November 3, 2009, and he raised this issue for the first time on January 9, 2012, clearly well beyond the five day limitation. People v. Webb, 236 AD2d 872 (1997); People v. Brown, 227 Ad2d 691, 692 (1996) lv denied 88 NY2d 980 (1996). The failure of the defendant to timely make the motion within the specified time period waived any claim he may have had on that issue. People v. Rolle, 72 AD2d 1393 (2010) lv denied 16 NY3d 745 (2011).
In addition, the alleged failure of the People to allow defendant to testify before the Grand Jury is not grounds for vacatur under CPL §330.30. Subsections (2) and (3) do not apply to this case, leaving §330.30(1) as the only grounds upon which to seek relief—"any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Defendant, however, raised this argument for the first time in his January 9, 2012 papers. It appears nowhere else in the record, and therefore does not fall under CPL §330.30(1).
The People's choice to proceed by sealed indictment is a decision solely within the discretion of the People. In addition, the defendant was never arrested or charged with a felony prior to the sealed indictment. Therefore, he was not entitled to notification of Grand Jury presentment. Criminal Procedure Law, §190.50(5); People v. Legree, 176 AD2d 983 (1991); People v. Wong, 163 AD2d 738 (1990).
Based upon the above, it is
ORDERED, that defendant's Order To Show Cause for CPL § 330.30 relief is denied and dismissed.
This shall constitute the Decision and Order of this Court.
Dated: February 22, 2012
Monticello, New York
___________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
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