People v Maddox
Annotate this CaseDecided on December 1, 2008
Supreme Court, Monroe County
People of the State of New York, Plaintiff,
against
Damon Maddox, Defendant.
0789/08
APPEARANCES:
MICHAEL C. GREEN,
DISTRICT ATTORNEY
Raymond G. Benitez, Esq.
Attorney for People
AARON SPERANO, ESQ.
Attorney for Defendant
David D. Egan, J.
Defendant Maddox moves this Court pursuant to CPL §190.50 for an Order
dismissing the within indictment on the grounds that his right to testify before the grand jury in
this case was violated. Defendant Maddox has also moved separately within his omnibus motion
for dismissal of the indictment on various other grounds under CPL §190.50.
Background
On September 23, 2008, the Defendant appeared to give testimony in his own defense before the Monroe County Grand Jury in this case. Defendant appeared with his counsel and duly executed a waiver of immunity. The document was properly attested to and all signatures appear in order. Defendant's counsel also separately executed an "Attorney's Acknowledgment" prior to his client's testimony.Before the grand jury, the prosecutor thoroughly reviewed all of the rights advisements and waivers embodied withing the waiver of immunity which Defendant duly acknowledged.
After the oath and acknowledgment of the waiver of immunity, Defendant's testimony began. The prosecutor began the questioning by stating to Defendant: "I'll give you the floor so you can [*2]explain what you were doing and where you were on a particular date, time and location, okay?" (Tr. p. 47, lines 6-9). After drawing Defendant's attention to the date in question, the prosecutor told Defendant: "I'm going to bring your attention now to - - it's going to be Wednesday, September 17, at approximately 11:08 p.m.. I'm simply going to ask you if you know where you were on that night, and if you were with anyone, explain who you were with, where you were at; and if you were in a motor vehicle, explain how it is you got there, and what happened that night shortly after 11 o' clock . Okay?". (Tr.p. 47, lines 11-19).
After this introductory matter, the prosecutor, rather than permit the Defendant to offer a narrative of events in the day in question, proceeded to question the Defendant on certain pedigree matters and his putative associations with co-defendants in the case. Nine pages of transcript later the questioning finally turned to the events in question. All the while, the prosecutor was directing the manner of questioning and the topics. At page 56 of the transcript the prosecutor finally began to direct the testimony of the Defendant concerning the transaction at issue. The questioning was interspersed with imperatives and questions such as: "[s]o describe what happened next? [Tr. p. 56 , l. 9] and "[a]re you familiar with the area?". The questioning continued until page 75 of the transcript. Most of the mode of questioning during the balance of Defendant's testimony was a hybrid of direct and cross examination. There were two attempts at impeachment of Defendant's testimony with prior criminal convictions. The prosecutor's general tone of questioning was vigorous and at times confrontational all in the absence of Defendant first having an opportunity to deliver a narrative in his own words.
Discussion
Criminal Procedure Law (hereinafter, "CPL") §190.50(5)(b) requires that where a person has executed a waiver of immunity, "such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration." See CPL §190.50(5)(b). A defendant testifying before a grand jury must be given an opportunity to give his own version of the events before being examined by the prosecutor. People v. Smith, 84 NY2d 998, 1000 (1994). Not only must a defendant be accorded an opportunity to give his own version of events first in narrative fashion, but he must also be given that same opportunity without being interrupted. People v. Lerman, 116 AD2d 665, 666 (2nd Dept. 1986).
With these rules in mind, an examination of the transcript of Defendant's testimony before the grand jury unquestionably shows that he was not afforded an opportunity to testify in the manner prescribed by law. The prosecutor, while suggesting at the outset that Defendant might get "the floor" to provide his version of events, never permitted Defendant to do so. The prosecutor immediately struck off on a line of questioning concerning Defendant's pedigree (ostensibly to set up his later attempts to impeach Defendant with certificates of criminal convictions). The immediate examination by the prosecutor is improper when a defendant appears before the grand jury. People v. Durante, 97 AD2d 851, 852 (2nd Dept. 1983). Instead of providing Defendant with an opportunity for his narrative, the prosecutor launched a series of questions dealing with Defendant's putative associations with the named co-defendants. The prosecutor exhaustively attempted to establish links between the Defendant and the named co-defendants. Even if one were [*3]to parse sections of Defendant's testimony and to attempt to paint them as the required "narrative", the mode of questioning would still have been improper in light of the numerous interruptions peppered throughout the testimony. People v. Lerman, 116 AD2d at 666.
In short, this Defendant never got the fair opportunity to testify properly before the grand jury in this matter. Accordingly, that portion of the omnibus motion seeking to dismiss the indictment as against this Defendant is granted, without prejudice to resubmission of the case to another grand jury.
Therefore, it is
ORDERED that Defendant's motion to dismiss the indictment is granted.
This Decision shall constitute the Order of the Court.
DATED: Rochester, New York
December 1, 2008
51;-
HON. DAVID D. EGAN
SUPREME COURT JUSTICE
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