People v Norbert

[*1] People v Norbert 2007 NY Slip Op 52465(U) [18 Misc 3d 1107(A)] Decided on December 28, 2007 Supreme Court, Kings County Leventhal, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2007
Supreme Court, Kings County

The People of the State of New York,

against

Charles Norbert, Defendant.



9179/2007



Cynthia Lynch, Esq.

Assistant District Attorney

For the People

Steven Banks, Esq.

For the Defendant

John M. Leventhal, J.

The issue presented is whether the defendant was deprived of his statutory right to testify before the Grand Jury where he was neither arraigned on a felony complaint before a local criminal court nor notified that his case was being presented to a Grand Jury.[FN1]

FACTS

Defendant was arrested at approximately 8:15 p.m. on September 17, 2007, for allegedly dousing complainant's home with a flammable liquid and lighting a match. As a result of this incident, complainant's home was destroyed and she suffered second and third degree burns to 43% of her body. The defendant fled the scene immediately, but was later located, arrested, and admitted to the Staten Island Hospital burn unit for treatment of burns he sustained in the incident. While in the hospital, the defendant underwent surgery, including skin grafts.

On September 19, 2007, a felony complaint was drafted by the District Attorney and signed by the fire marshal who was also the arresting officer in the case. The defendant was not immediately arraigned in a local criminal court on this felony complaint because of his hospitalization. The assigned assistant district attorney communicated regularly with the hospital, but was informed that the defendant did not have medical clearance to be arraigned. In [*2]order to avoid releasing the defendant pursuant to CPL §180.80,[FN2] the ADA submitted the case to the Grand Jury on September 21, 2007. The Grand Jury voted to indict the defendant the same day. The indictment was filed on September 28, 2007. Upon receiving medical clearance, the ADA arraigned the defendant on the indictment in a special hospital arraignment held on October 5, 2007. Defense counsel alleged that defendant was ready and able to be arraigned at any time during his stay in the hospital.

On October 11, 2007, defendant filed the instant motion to dismiss pursuant to CPL §§ 190.50, 210.20(1)(c) and 210.35(5), claiming he was not afforded an opportunity to testify before the Grand Jury prior to the filing of the indictment and that there was unnecessary delay in his arraignment on the felony complaint. In deciding this motion, the Court has considered the defendant's motion, the People's answer, and the oral arguments of counsel heard on December 12, 2007.[FN3]

DISCUSSION

A motion to dismiss based on the ground that an indictment was obtained in violation of a defendant's right to testify must be made "not more than five days after the defendant has been arraigned upon the indictment" or else the contention is waived (CPL §190.50[5][c]). To implement a statutory time limit that starts to run upon the occurrence of a specified event, courts have applied McKinney's General Construction Law § 20 (see, e.g., People v Stiles, 70 NY2d 765 [1987]; People v Anderson, 66 NY2d 529 [1985]; People v Burgess, 153 NY 561 [1897]; Sugerman v Jacobs, 160 AD 411 [1914]). Essentially this rule of construction excludes the first day (the day of the specified event), but includes the last day, in calculating the time limit. An allowance is given for weekend days and holidays only if the time limit is a period of two days. In this case, the event that triggered the five-day time limit was the arraignment of the defendant, which occurred on October 5, 2007. Excluding this day and including the fifth day made October 10, 2007 the last possible day for defendant to bring his motion.[FN4] Defendant's motion is [*3]dated October 11, 2007 and is therefore time-barred.

Although some Second Department cases have upheld an extension of the five-day time limit mandated by CPL §190.50(5)(c), these extensions were made by defense counsel prior to the expiration of the five-day period (People v Backman, 274 AD2d 432 [2000]; People v Mason, 176 AD2d 356 [1991]). Other Second Department cases did not permit a lower court to extend the five-day period when the motion was made after the time limit had already expired, five days or more after the date of arraignment (People v Duran, 266 AD2d 230, 231 [1999], leave to appeal denied, 94 NY2d 822 [1999]; People v Valle, 198 AD2d 459 [1993], appeal denied, 82 NY2d 932 [1994]).[FN5] Here, defense counsel did not request an extension or file the instant motion prior to the expiration of the five-day limit.

Further, because the defendant's rights are purely statutory, the proper resolution of this issue is to examine legislative intent by applying the rules of statutory construction. Where the legislature has authorized a court to take a particular action in a particular situation, but has failed to authorize a court to take that same action in a different situation, the omission is deemed intentional (see People v Finnegan, 85 NY2d 53, 58 [1995]; People v Tychanski, 78 NY2d 909, 911 [1991]). In this case, whenever the CPL has placed a time limitation on a defendant's motion and the legislature wishes to grant the court the authority to disregard the time limitation, the statute authorizes extension for "good cause" shown.[FN6] In CPL §190.50, the legislature has not specifically provided the court with "good cause" authorization to ignore or to excuse the five day limitation. This omission is intentional and indicates that the court is unauthorized to forgo the five day requirement (see People v Onyeabor, 8 Misc 3d 310 [2005]).

The phrase "may not thereafter be challenged on such ground" after the statute also establishes that the five day requirement is mandatory and indicates that the legislature prohibited a court from entertaining an untimely motion (see People v Mc Neil, 90 Misc 2d 180, 181-182 [1977] [stating phrase "may not" is peremptory."]).

Defendant's motion must be denied even if the Court were to consider it upon the merits. The plain language of the statute reads in pertinent part: "The district attorney is not obliged to inform . . . a person that . . . a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding" (CPL §190.50 [5][a]). Here, a reading of the statute "compels the conclusion" that the prosecutor had no duty to inform the defendant of his right to testify before the Grand Jury because he was not arraigned in a local criminal court upon the felony complaint (People v Munoz, 207 AD2d 418, 419 [1994]; see also People v Haughton, 15 Misc 3d 1101(A) [2007]). Further, the defendant did not serve written notice upon the district attorney of his intention to testify prior to the filing of the indictment voted upon by the Grand [*4]Jury (see CPL §190.50 [5][a]). Therefore, no right to testify accrued on defendant's behalf.[FN7]

The defendant argues that the prosecution's delay in arraigning him before a local criminal court unfairly prevented him from testifying before the grand jury. CPL § 140.20(1)[FN8] requires that an arraignment after a warrantless arrest be accomplished without "unnecessary delay." In People ex rel. Maxian v. Brown, et. al., 77 NY2d 422, 570 (1991), the Court of Appeals implicitly defined "without unnecessary delay" as that period of time "reasonably necessary to accomplish the task required to bring an arrestee to arraignment." The Court also set a guideline that a delay of arraignment of more than 24 hours is presumptively unnecessary, unless explained (id.). Here, the prosecution provided explanation for the delay: defendant was not medically cleared to be arraigned in a local criminal court or even at the hospital within 24 hours of his warrantless arrest because he was being treated for burn injuries. In order to avoid being compelled to release the defendant pursuant to CPL §180.80, the prosecution submitted the case to the Grand Jury and the indictment was voted on September 21, 2007. The defendant does not refute the People's factual assertions and has not provided contrary proof that he had medical clearance to be arraigned and fingerprinted on the felony complaint (Munoz, 207 AD2d 418 [finding no prejudice where the People submitted defendant's case to a Grand Jury because defendant's hospitalization prevented arraignment on the felony complaint]; see also Haughton, 15 Misc 3d 1101(A); People v Williams, 180 Misc 2d 203 [1999]). In fact, defendant was not medically cleared for arraignment until after the indictment had been filed. Therefore, the prosecution did not unnecessarily delay the defendant's arraignment before a local criminal court and did not err in submitting the case to the Grand Jury. Further, the defendant has not shown that the scheduling of the hospital arraignment on the indictment was done by the People with the intent to circumvent defendant's statutory right to testify before the Grand Jury.

The defendant also argues that the Grand Jury's vote to indict him did not eviscerate his right to be arraigned in a local criminal court. This Court disagrees. Once the Grand Jury indicted the defendant, the People had no further obligation to arraign him before a local criminal court upon the felony complaint. A subsequent criminal court arraignment would have been "superfluous and unnecessary" and would not have created an additional right for the defendant to testify before a Grand Jury (Haughton, 15 Misc 3d 1101(A)).

Accordingly, the motion to dismiss the indictment grounded on a violation of CPL §§190.50, 210.20(1)(c) and 210.35(5) is denied because it was made beyond the statutory five day period and no statutory right to testify before the Grand Jury accrued on the defendant's behalf.

This constitutes the Decision and Order of the Court. [*5]

______________________________

J. S. C. Footnotes

Footnote 1: The defendant also moves to dismiss the indictment under CPL §210.20(1)(c), in that the proceedings before the Grand Jury were prejudiced because he was deprived of the opportunity to testify. The court views this as one and the same as the issue presented above.

Footnote 2: CPL §180.80 provides:

Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint . . . for a period of more than one hundred twenty hours . . . without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance.

The statute goes on to list several exceptions to this general rule, one of which is applicable to the matter sub judice. CPL §180.80(2)(a) provides that a defendant does not have to be released where the district attorney files a written certification that an indictment has been voted.

Footnote 3: At oral argument, the assigned ADA attested that she was in regular contact with Staten Island hospital. It was not until after the indictment was voted that she received medical clearance to arraign the defendant at the hospital or otherwise. The representations made by the ADA were uncontroverted by the defendant.

Footnote 4: One may argue that the statute explicitly excludes the first day, the day of the arraignment under the indictment (see, e.g., People ex rel. Neufeld v McMickens, 70 NY2d 763 [1987] [Where statutory language is unambiguous, construction or interpretation is unnecessary.]).

Footnote 5: Neither of these cases explicitly discussed the authority of a lower court to extend the time for making the motion.

Footnote 6: See, e.g., CPL §§ 100.25 (3), 200.95 (3), 240.80 (1), 250.10 (2), 250.20 (1), 250.30 (1), 255.20 (3), 400.15 (7) (b), 400.19 (6)(c), 400.20 (6), 400.21 (7) (b), and many others.

Footnote 7: See People v Mateo, NYLJ, May 15, 1998, at 33, col 5, for a full discussion of the evolution of a defendant's statutory right to testify before a grand jury.

Footnote 8: In pertinent part, CPL §140.20 (1) reads: "Upon arresting a person without a warrant, a police officer . . . must . . . , without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith the appropriate accusatory instrument charging him with the offense or offenses in question."