People v Thomas

[*1] People v Thomas 2004 NY Slip Op 51120(U) Decided on August 16, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

JAMES THOMAS, Defendant



3455/02

Sheryl L. Parker, J.

Defendant moves for dismissal of the instant indictment pursuant to CPL 190.50 on the grounds that the defendant was deprived of his right to testify before the grand jury.

On June 2, 2004, defendant was arraigned in Criminal Court on a felony complaint charging him with Robbery in the First Degree and related charges. At that time, the People served the defendant with 190.50 notice, thereby informing him of his right to testify before the Grand Jury. The defendant also served reciprocal 190.50 notice at arraignment. It is uncontested that on June 4, 2004, defendant's prior counsel, Nanette Kripke, Esq., spoke with defendant and advised the prosecutor that defendant no longer wished to testify before the Grand Jury.

Defense counsel, Harvey Herbert, Esq., asserts that defendant informs him that he never told prior counsel that he wanted to withdraw his right to testify before the Grand Jury and that prior counsel was completely unauthorized to do so. Mr. Herbert affirms that he spoke with Nanette Kripke, Esq. who related to him that she advised defendant not to testify before the Grand Jury, that he reluctantly agreed, and that she informed the prosecutor that the defense withdrew their cross 190.50 notice. The defense attaches to their papers, as Exhibit B, Ms. Kripke's handwritten note to the prosecutor dated June 4, 2004 withdrawing cross 190.50 notice.

Defense counsel contends that since defendant was ill on July 28, 2004, when defense counsel was scheduled to visit him and in view of the time restraints of the motion schedule, defendant's affidavit will have to follow.

The People oppose the motion and maintain that on June 4, 2004 defendant's prior counsel informed them that defendant withdrew his 190.50 notice. They affirm that only after they were so informed did they present charges to the Grand Jury and that on June 4, 2004 the Grand Jury returned an indictment on several charges. The People affirm that on June 10, 2004 the final witness testified, additional charges were presented and a true bill was voted on those remaining charges. They claim that they phoned Nanette Kripke, Esq. on August 5, 2004 to provide her with an affidavit to sign, but her voice mail said she would be on vacation from August 2, 2004 to August 19, 2004.

Pursuant to CPL 190.50 (5) (a), the People are required to notify a defendant of a pending Grand Jury proceeding where the defendant has been arraigned upon an undisposed felony complaint. Thereafter, the defendant must serve upon the District Attorney written notice of his intent to testify. Here, the People satisfied their statutory obligation and defendant served reciprocal 190.50 notice, but subsequently defendant withdrew that notice. Even if defendant did not consent to his original attorney's sound strategic decision that defendant should not [*2]testify before the Grand Jury, that circumstance would not provide a basis for dismissal of the indictment (People v Dickens, 259 AD2d 450, lv appl den, 93 NY2d 1002).

Moreover, any defense counsel failure to effectuate defendant's intention to testify before the Grand Jury does not, per se, amount to a denial of effective assistance of counsel (see, People v Wiggins, 89 NY2d 872; People v Del Cerro, 299 AD2d 160,161). The defendant must also show that had defendant testified, the result of the Grand Jury proceeding would have been different (People v Mobley, 309 AD2d 605; People v Harrison, 304 AD2d 470, 471). Defendant has made no such showing here.

Hence, defendant's motion is in all respects denied.

The foregoing constitutes the decision and order of the court.

August 16, 2004 Sheryl L. Parker,

J.S.C.