People v Quick
Annotate this CaseDecided on December 15, 2004
Supreme Court, Monroe County
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, .
against
Anthony Lamont Quick, Defendant.
2004-1027B
For the People:Michael C. Green
Monroe County District Attorney
Stephanie Guido Miller, A.D.A.
47 S. Fitzhugh Street, Suite 832
Rochester, New York 14614
For the Defendant:Charles A. Schiano, Jr., Esq.
315 Wilder Building
Rochester, New York 14614
Joseph D. Valentino, J.
Defendant, Anthony Lamont Quick, stands accused under Indictment # 2004-1027B of Criminal Possession Stolen Property in the Third Degree. Defendant now moves for dismissal of the indictment pursuant to CPL 190.50. The People oppose defendant's motion.
Defendant was arraigned on a felony complaint in Rochester City Court on November 6, 2004. At arraignment, defendant did not have counsel because of a conflict of interest and appointment of private counsel was required. The Public Defender was assigned to represent the co-defendant. At defendant's arraignment, the People served defendant with a Grand Jury Notice, indicating that the case would be presented to the Grand Jury on November 9, 2004 at 2:30 p.m. The notice indicates that defendant must notify the People by 9:00 a.m. on November 9, 2004 of his intent to testify before the Grand Jury.
Defense counsel was assigned to represent defendant on November 8, 2004. Defense counsel [*2]called the prosecutor on the morning of November 9, 2004, but he did not speak to the prosecutor.
Defendant argues that he should have an opportunity to consult with his attorney to make an informed decision on whether to testify before the Grand Jury, and he was not given such an opportunity. Defendant does not contend that he submitted an oral or written notice of his intent to testify before the Grand Jury.
A defendant has the right to appear before a Grand Jury when prior to the filing of any indictment he or she serves upon the District Attorney a written notice making such request (CPL 190.50 [5] [a]). The People must comply with CPL 190.50 (5) (a) by providing the defendant with "reasonable time" to exercise his right to testify before the Grand Jury, which includes a meaningful opportunity to consult with counsel and to prepare for the defendant's possible testimony before the Grand Jury (see, People v Sawyer, 96 NY2d 815, 816, rearg denied 96 NY2d 928).
"CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, 'reasonable time' must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a Grand Jury. The concept of reasonableness is flexible and must be applied to the particular facts of a case as known at the time" (People v Sawyer, supra at 816). In People v Sawyer, supra, the Court determined that one and one-half days' notice of the Grand Jury presentment date was a reasonable time, where defendant was represented by counsel when he received notice of the presentment and had conferred with his attorney on at least three occasions during the two days that preceded the presentment date.
Concerning defendant's motion to dismiss the indictment, upon the facts of the case, where (1) defendant received notice of the Grand Jury presentment on November 6, 2004, (2) defendant was assigned counsel on November 8, 2004, who first appeared on November 9, 2004 at 2:00 p.m. in Rochester City Court, and (3) the Grand Jury presentment was on November 9, 2004 at 2:30 p.m., the Court concludes that defendant was not afforded a reasonable time to consult with counsel and exercise his right to testify before the Grand Jury (see, People v Sawyer, supra; People v Degnan, 246 AD2d 819 [one days' notice was patently unreasonable; the People's hasty presentation was prompted not by statute mandating release of the defendant upon failure of timely disposition, but rather, to avoid necessity of conducting a preliminary hearing]).
Accordingly, defendant's motion to dismiss the indictment is granted on condition that, should the People exercise their right now granted them to resubmit the case to a new Grand Jury, defendant properly waives immunity and testifies before that body. In the event that defendant does not so waive and testify, the instant indictment shall be deemed reinstated (see, People v Randazzo, 171 Misc 2d 541).
The above constitutes the decision and order of this Court.
Dated:Rochester, New York
December 15, 2004
____________________________________
Hon. Joseph D. Valentino
Justice Supreme Court
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