People v Pabon

[*1] People v Pabon 2009 NY Slip Op 52318(U) [25 Misc 3d 1228(A)] Decided on October 29, 2009 Supreme Court, Bronx County Holdman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Lee Pabon, Defendant.



3288/09



APPEARANCES:

For the People:

Michele L. Melnick, Esq.

Office of the Bronx District Attorney

Narcotics Bureau

198 East 161 Street

Bronx, NY 10451

(718 590-2000

For the Defendant:

David Craig Berlin, Esq.

888 & th Avnue, Suite 4500

New York, NY 10106

(212) 247-4650

Robert K. Holdman, J.

Defendant moves to dismiss the indictment on the ground that he was not afforded an opportunity to testify before the Grand Jury. In the alternative, defense counsel requests that Defendant be granted new counsel on the ground that he has been denied effective assistance of counsel, and be given an opportunity to exercise his right to testify before the Grand Jury.

The Court points out preliminarily that the second paragraph of the People's Affirmation in Opposition to Defendant's motion to dismiss pursuant to CPL 190.50 erroneously states that the affirmation is submitted "in response to defense counsel's notice of motion requesting suppression of defendant's statements, suppression of any identification of the defendant, preclusion of additional statements made by defendant, and compelling the People to provide defendant with information regarding defendant's prior charged and uncharged crimes the People intend to introduce at trial."

All notices pursuant to CPL 190.50 were properly served in this case. At the calendar appearance on August 19, 2009, defense counsel and the People agreed that Defendant would testify before the Grand Jury on August 20, 2009, at 2:00 p.m. In addition, defense counsel informed the People that Defendant had a witness who intended to testify on Defendant's behalf.

Defendant his witness were present outside the reception area at the Grand Jury panels prior to the agreed-upon time of 2:00 p.m. on August 20. Also present in the reception area was an attorney from The Legal Aid Society, who according to defense counsel, observed Defendant and his witness at the Grand Jury reception area prior to 2:00 p.m. on August 20. Defense counsel did not arrive until approximately 2:20 p.m.

Upon his arrival, defense counsel checked in with the court officer sitting at the desk, who called for the presenting ADA. She came out several minutes later and told defense counsel that she had already voted the case and the Grand Jury had voted a true bill. She informed defense counsel that a quorum was present in the C Panel of the Grand Jury beginning at 2:15 p.m. and that, having looked in the waiting room at 2:20 p.m., and not having seen defense counsel, she proceeded to vote the case.

According to defense counsel, the prosecutor would not grant defense counsel's request to allow Defendant and his witness to testify despite the fact that the Grand Jury had already voted [*2]to indict.

People v. Evans, 79 NY2d 407 (1992) held that "[b]y providing timely notice reasonably prior to Grand Jury presentment and vote, defendants establish their statutory right to testify before a vote is taken, assuming, of course, that any failure to afford these individuals a prevote appearance is not attributable to defendants themselves." In this case, timely notice had been provided and Defendant made himself available to testify by appearing at the scheduled time. Thus, his failure to testify is not attributable to him. "[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different' from and more advantageous than the opportunity to testify at a reopened presentment after the Grand Jury had committed itself to a vote based on the prosecution's ex parte presentment of evidence." Id.. at 414. However, as noted in Evans, "the obligation under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed (see, e.g., People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507), is an added window given to defendants. Here, Defendant expressed his willingness to testify even though the Grand Jury had already voted to indict, but he was not given that opportunity.

The prosecutor stated that defendants are usually expected to testify by 10:00 a.m., but defense counsel was informed "that the people would make an exception for Defendant," and that he would have to be in the waiting room with Defendant at 2:00 p.m. sharp. The Court notes that the District Attorney's Office and defense counsel agreed upon a time for Defendant to testify. While the District Attorney's practice of scheduling testimony from defendants in the morning may promote efficiency, there is no legal requirement as to the time of day defendants or their witnesses must testify, and it is misleading to characterize the 2:00 p.m. time agreed upon in this case as "an exception".

On August 20, the prosecutor came out to the waiting room at 2:15 p.m. and was informed by the court officer that no one had checked in with him. The prosecutor states that she observed the Legal Aid attorney in the waiting room, and that she observed two gentlemen at the end of a hallway near the witness elevators, but the court officer did not know the identify of the gentlemen. At 2:18 p.m. the prosecutor again went to the waiting room, but the defense attorney had not checked in or left a message. At 2:20 p.m., the prosecutor checked her office voicemail but had not received any message from the defense attorney. She thereupon entered the Grand Jury chamber and voted the case. Upon learning that the defense attorney was in the waiting room, she told him she would make an effort to accommodate the lateness of the hour, however, the Grand Jury was very busy and it would not be possible to vacate the vote.

Criminal Procedure Law § 190.50 (5) (a) provides: 5. Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision: (a) When a criminal charge against a person is being or is about to be or has been [*3]submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. The district attorney is not obliged to inform such a person that such 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. In such case, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein; (emphasis added).

In this case, defense counsel asserts, and the People do not refute, that the prosecutor made no effort to ascertain the identity of the two gentlemen she observed sitting in the hallway, either by calling out Defendant's name or by asking the court officer to do so. While the People are not required to track down defense counsel, nor to wait indefinitely for counsel to appear, this case was apparently voted a mere five minutes after a quorum was present. Moreover, the prosecutor herself was apparently not available until 2:15 p.m., which is the time she avers that she first checked the reception area.

The actions of both attorneys in this case resulted in Defendant not having a reasonable opportunity to testify before the Grand Jury. Defendant served timely notice and made himself available to testify by appearing at the Grand Jury at the scheduled time. It was defense counsel's responsibility to call the prosecutor to inform her that he was going to be late. Defense counsel states that he was on the subway, however, the several minute walk from the subway station to the Bronx Hall of Justice would have enabled counsel to get word to the prosecutor several minutes prior to 2:20 p.m. when he appeared and the case was being voted. The prosecutor could have ascertained if one of the gentlemen she observed in the waiting room was Defendant and waited a reasonable amount of time for defense counsel to appear.

As to Defendant's alternative claim that he was denied effective assistance of counsel, the failure to timely facilitate defendant's intention to testify before the Grand Jury does not alone amount to a denial of effective assistance of counsel. People v. Wiggins, 89 NY2d 872 (1996). "Effective assistance of counsel is satisfied [s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation.'" (citations omitted) Id. at 873. In Wiggins, as in this case, defense counsel had not appeared at the designated time for Defendant's Grand Jury testimony. [*4]

Under the circumstances herein, Defendant did not have a reasonable opportunity to exercise his right to appear as a witness before the Grand Jury. Therefore, dismissal of the indictment is warranted under CPL 190.50(5)(a). Defendant's motion to dismiss is granted. The People are given leave to re-present this case to a new Grand Jury within 45 days.

The foregoing constitutes the decision and order of the Court.

E N T E R:

____________________________________Robert K. Holdman

Justice of the Supreme Court

DATED:October 29, 2009

The Bronx, New York