People v Kelton

[*1] People v Kelton 2013 NY Slip Op 51669(U) Decided on October 11, 2013 County Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2013
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Jordon J. Kelton, Defendant.



CR13-113



Kristy L. Sprague, Esq., Essex County District Attorney

(Michele A. Bowen., of counsel), Elizabethtown, New York.

Debra A. Whitson, Esq.

Elizabethtown, New York, for defendant.

Richard B. Meyer, J.

Motions pursuant to CPL §190.50 by the defendant to dismiss two indictments for denial of his right to appear and testify before the grand jury, and motion to set bail. [*2]

I.

A.The Motion Papers

The Court has considered the following papers in support of the motions to dismiss the indictments: for Case No. CR13-113, a notice of motion [FN1] dated September 6, 2013 and affirmation of Debra A. Whitson, Esq. dated September 6, 2013 with exhibits A through C, and supplemental affirmation of Debra A. Whitson, Esq. dated September 18, 2013, all in support of the motion; for Case No. CR13-125, a notice of motion dated September 6, 2013 and affirmation of Debra A. Whitson, Esq. dated September 6, 2013 with exhibits A and B [FN2], and supplemental affirmation of Debra A. Whitson, Esq. dated September 18, 2013. In opposition to both motions, the People submitted a single affirmation by assistant district attorney Michele A. Bowen, Esq. dated September 17, 2013 with exhibits A through E. Since determination of the issues presented rested in part upon the proceedings before the grand jury, this Court reviewed the grand jury minutes which were filed by the People on October 9, 2013.

The motion papers to set bail consist of: notice of motion dated September 11, 2013, affirmation of Debra A. Whitson, Esq. dated September 11, 2013 with exhibits A and B, and a reply affirmation of Debra A. Whitson, Esq. dated September 17, 2013 with exhibits consisting of two habeas corpus proceedings filed July 25, 2013 and July 26, 2013, all in support of the motion; and in opposition to the motion an affirmation and a supplemental affirmation of Michele A. Bowen, Esq. both dated September 16, 2013.

B.Case No. CR-113

The defendant is charged by indictment CR13-113 with grand larceny in the fourth degree (Penal Law §155.30[8]), a class E felony, 155.30, two counts of criminal mischief in the fourth degree (Penal Law §145.00[3]), both class A misdemeanors, one count of reckless driving (Vehicle & Traffic Law §1212), an unclassified misdemeanor, and one count of leaving the scene of a property damage accident (Vehicle & Traffic Law §600[1][a]), a traffic infraction. The charges [*3]arise out of two separate incidents alleged to have occurred in the village of Lake Placid, Essex County, on June 21, 2012, one at the intersection of Trillium Drive and Station Street (the "Trillium Drive" incident) and the second one at 12 Nichols Street (the "Nichols Street" incident). For the Trillium Drive incident, the defendant was charged by a felony complaint with criminal mischief in the second degree (Penal Law §145.10), a class D felony, and by a misdemeanor information with criminal mischief in the fourth degree. He was also charged by a felony complaint with grand larceny in the fourth degree and by a misdemeanor information with unauthorized use of a motor vehicle (Penal Law §165.05[1]), a class A misdemeanor, for the Nichols Street incident.

The defendant was arraigned on all charges on June 22, 2012, at which time a not guilty plea to all charges was entered. It was not until more than 13 months later that a hearing to determine whether there was sufficient evidence to warrant the court in holding the defendant for the action of the grand jury (CPL §180.10[2], §180.60) was conducted in local criminal court. No explanation for such a lengthy delay has been furnished to this Court. The hearing was held on July 29, 2013, and the local criminal court issued an order holding the defendant for such action. A securing order was issued on July 17, 2013 remanding the defendant to the custody of the Essex County Sheriff pending the posting of bail in the amount of $20,000 cash or $20,000 insurance company bail bond.

C.Case No. CR13-1125

This indictment charges the defendant with a single count of criminal mischief in the second degree (Penal Law §145.10), a class D felony. The criminal action was commenced on June 6, 2013 by the filing of a felony complaint charging him with that offense. The charge arises out of an incident alleged to have occurred in the town of Lewis, Essex County, on or about April 26, 2013. The defendant was arraigned on June 6, 2013 and entered a plea of not guilty. The court issued a securing order dated July 11, 2013 requiring the defendant to post bail in the amount of $2,500 cash or secured bond, and pending the posting of such bail he was remanded to the custody of the Essex County Sheriff. A hearing to determine whether there was sufficient evidence to warrant the court in holding the defendant for the action of the grand jury (CPL §180.10[2], §180.60) was conducted in local criminal court on August 13, 2013, and the local criminal court issued an order holding the defendant for such action.

D.Preliminary & Grand Jury Proceedings

On July 18, 2013, prior to the preliminary hearings in both cases, counsel for the defendant served written notice upon the People "that the defendant wishes to appear as a witness at any grand jury proceeding concerning all pending felony complaints" and requesting that the District Attorney serve notice upon defense counsel of any scheduled grand jury presentation. This notice contained three separate captions relating to charges pending in the justice courts of the town of North Elba [FN3], [*4]the village of Lake Placid, and the town of Lewis.

On July 26, 2013, the People served a notice on defense counsel advising that the charges would be presented to the grand jury on July 31, 2013 along with a letter requesting written notification to the People as to whether the defendant would testify before the grand jury. This notice had a single caption with no identification of the charges to which it pertained either by way of the caption or in the body of the notice .

No charges were presented to the grand jury on July 31st. Instead, on August 7, 2013 the People issued a second notice of grand jury presentment advising that "there is currently pending against the above-named defendant an undisposed Felony Complaint in a Local Criminal court charging an offense which is the subject of prospective or pending Grand Jury consideration", that the defendant notify the district attorney in writing should he desire to testify before that body, and that "[t]his case will be presented to the Grand Jury on August 14, 2013." Again, this notice contained only a single caption and no specification of the felony complaint or charge to be presented. The notice was served upon defendant's counsel, and in their letter forwarding the same to defense counsel the People requested written notification that the defendant wished to testify before the grand jury. At no time did the defendant or his attorney revoke or withdraw the July 18, 2013 notice of the defendant's election to testify before the grand jury, nor did the defendant or his attorney serve a second notice of such election following the August 7, 2013 notice issued by the People.

Two habeas corpus proceedings were commenced by the defendant. The first such proceeding was commenced in County Court and was denied. The second proceeding was brought in Supreme Court and heard on August 13, 2013, a Tuesday. It was also denied. According to the portion of the transcript furnished by the People [FN4], the People represented to that court that the defendant was afforded a felony hearing on the charges out of Lake Placid (CR13-113), a felony hearing would be held that very evening in the town of Lewis justice court on the charges pending there, and that the grand jury would be meeting on Wednesday and both the defendant and his attorney were invited to attend. Moreover, the assistant district attorney stated she did not know if the defendant had chosen to testify, a position which defense counsel corrected by referring her and the court to her July 18, 2013 notice. Nothing in the transcript reflects whether all pending charges against the defendant, or some, would be presented the next day to the grand jury, nor was there any mention of the time the grand jury would meet to consider any such charges.

The charges in both cases were presented to the grand jury on August 14, 2013. The grand jury minutes contain no evidence that the foreperson of the grand jury, or any other member of the grand jury, was notified by the People that the defendant had served a notice wished to testify before [*5]that body. Indictments were in both cases on August 28, 2013. In Case No. CR13-113 the defendant is charged with the class E felony of grand larceny in the fourth degree, two counts of criminal mischief in the fourth degree, both class A misdemeanors, one count of reckless driving (Vehicle & Traffic Law §1212), an unclassified misdemeanor, and one count of leaving the scene of a property damage accident (Vehicle & Traffic Law §600[1][a]), a traffic infraction. In Case No. CR13-125, the defendant is charged with a single count of criminal mischief in the second degree, a class D felony. He was arraigned on both indictments before this Court on September 5, 2013 and entered pleas of not guilty. He now timely moves to dismiss both indictments, alleging he was unlawfully denied the opportunity to testify before the grand jury.

II.

"[A] prospective defendant has no constitutional right to testify before the Grand Jury. That right is provided by CPL 190.50(5)." (People v. Smith, 87 NY2d 715, 719, 642 N.Y.S.2d 568, 571, 665 N.E.2d 138, 141 [1996]). "The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding." (People v. Evans, 79 NY2d 407, 412, 583 N.Y.S.2d 358, 360, 592 N.E.2d 1362, 1364 [1992]).

The initial notice required to be given by the People to the defendant to advise him or her of the right to testify must not only "be reasonably calculated to apprise the defendant of the Grand Jury proceeding so as to permit him to exercise his right to testify" (People v. Jordan, 153 AD2d 263, 266-267, 550 N.Y.S.2d 917, 920, leave to appeal denied 75 NY2d 967, 556 N.Y.S.2d 252, 555 N.E.2d 624; see also, People v. Moore, 249 AD2d 575, 670 N.Y.S.2d 623, leave to appeal denied 92 NY2d 857, 677 N.Y.S.2d 87, 699 N.E.2d 447) but it must also inform the defendant of the charges in the felony complaint(s) that will be presented. "Once the People have notif[ied] the defendant that the charges in the felony complaint would be presented to the Grand Jury, the People [have] satisfied their statutory obligation' (210 AD2d, supra, at 496, 620 N.Y.S.2d 131)." (People v. Hernandez, 223 AD2d 351, 352, 636 N.Y.S.2d 45, 46 [1st Dept., 1996]; see, also, People v. Perez-Tavares, 238 AD2d 446, 447, 656 N.Y.S.2d 352, 353 [2d Dept., 1997], appeal denied 90 NY2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063; People v. Guzman, 233 AD2d 527, 528, 650 N.Y.S.2d 302, 303 [2d Dept., 1996], appeal withdrawn 89 NY2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624; People v. Choi, 210 AD2d 495, 496, 620 N.Y.S.2d 131, 132 [2d Dept., 1994]).

Once a defendant is so informed, "Criminal Procedure Law §190.50(5)(a) provides a defendant with the right to testify before the grand jury if, prior to the filing of any indictment . . . in the matter, he serves upon the district attorney of the county a written notice making such request.'" (People v. Griffith, 76 AD3d 1102, 1102, 908 N.Y.S.2d 123, 124 [2d Dept., 2010], lv. den. 15 NY3d 953, 917 N.Y.S.2d 112, 942 N.E.2d 323). "Upon service upon the district attorney of a notice requesting appearance before a grand jury pursuant to paragraph (a), the district attorney must notify the foreman of the grand jury of such request, and must subsequently serve upon the applicant, [*6]at the address specified by him, a notice that he will be heard by the grand jury at a given time and place." (italics added) (CPL §190.50[5][b]).

Here, the notices served by the People on July 26, 2013 and August 7, 2013 do not comply with CPL §190.50(5), whether viewed as a notice advising the defendant of his right to testify or as a notice after he has elected to testify. The notices served by the People do not identify the charge or charges which were to be presented to the grand jury. The notices are singular, referring to "an undisposed felony complaint . . . charging an offense" (italics added). No specification of the offense charged in that undisposed felony complaint is made. Moreover, there is no designation of the "time" for the presentation. By specifying "August 14, 2013" as being when the grand jury would meet to consider the unspecified charge or charges against the defendant, the People only designated the "date", not the time. "The day when an event . . . will happen" is a "date" (Black's Law Dictionary 422 [8th edition 2004]). Also, the place where the grand jury will hear the defendant is not identified or designated. Review of the grand jury minutes discloses that the People did not notify the foreperson of the grand jury that the defendant had elected to testify before the grand jury, and there is no averment in the papers submitted by the People that any such notification was made.

Contrary to the People's assertion before Supreme Court in the habeas proceeding and now here, the obligation to arrange for the defendant to be produced before the grand jury rested with the People, not defense counsel. At the time the grand jury convened on July 31, 2013 and August 14, 2013, the defendant was confined in the Essex County Jail pursuant to separate securing orders in each case, plus there was a securing order from the town of North Elba justice court dated July 8, 2013 setting bail in the amount of $100 cash or $200 insurance company bail bond. "When a criminal action is pending against a defendant who is confined in an institution within the state pursuant to a court order issued in a different action, proceeding or matter, . . . [i]f the action is pending in a superior court . . . such court may, upon application of the district attorney, order the production therein of a defendant confined in any institution within the state." (italics added) (CPL §560.10[1][a]).

"[A]ny indictment obtained in violation of the statutory notice and waiver provisions is invalid' and must be dismissed' upon timely motion (CPL 190.50[5][c]; see also, CPL 210.20, 210.35[4])." (People v. Smith, 87 NY2d 715, 720, 642 N.Y.S.2d 568, 571, 665 N.E.2d 138, 141; see also People v. Degnan, 246 AD2d 819, 667 N.Y.S.2d 808). As the Court of Appeal "explained in People v. Evans, 79 NY2d 407 at 413-414, 583 N.Y.S.2d 358, 592 N.E.2d 1362, CPL 190.50(5) protect[s] defendants' valued statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury's consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution.' To guard against abridgement of this valued' right, we have further ordered that it must be scrupulously protected' (People v. Corrigan, 80 NY2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723; see, e.g., People v. Evans, 79 NY2d at 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [affirming dismissal of indictment, because statutory right to testify was not satisfied by opportunity to appear after Grand Jury had voted indictment])." (People v. Smith, 87 NY2d 715, 720, 642 N.Y.S.2d 568, 571-572, 665 N.E.2d 138, 141-142 [1996]). [*7]

The indictments in Cases No. CR13-113 and CR13-125 are thus dismissed, subject to the right of the People to resubmit the charges to a grand jury within thirty (30) days hereof (CPL §210.20[6][b]). Pursuant to CPL §210.45(9), and the defendant's motion to modify the underlying securing orders which is hereby granted, the defendant is hereby released upon his own recognizance on the conditions set forth in the securing order issued simultaneously herewith; and he shall appear in this action whenever his attendance may be required and shall render himself at all times amenable to the orders and processes of this or any other court having jurisdiction.

It is so ordered.

ENTER ____________________________________

Richard B. Meyer, J.C.C. Footnotes

Footnote 1:Because the notice of motion included a return date of September 9, 2013, an order to show cause was issued by the Court on September 12, 2013 providing for a return date of September 18, 2013 in order to provide the People with sufficient time to respond to the motion. The lack of any provisions in the Criminal Procedure Law relating to the time for making motions is a serious defect which the Legislature fails to address. This is particularly so since the Civil Practice Law and Rules, which contain specific provisions governing motions (see CPLR §§2211 et seq.), are not applicable to criminal actions (see CPL §1.10; CPLR §101).

Footnote 2:Although the affirmation refers to a letter from an assistant district attorney dated August 8, 2013 and avers that a copy is attached as Exhibit C thereto, no such document is attached.

Footnote 3:According to the securing order issued by the town of North Elba justice court on July 11, 2013, a copy of which is attached as part of the exhibit to the reply affirmation of Debra A. Whitson in support of bail dated September 17, 2013, the defendant is charged there with criminal mischief in the third degree (Penal Law §145.05), a class E felony, and petit larceny (Penal Law §155.25), a class A misdemeanor. No information has been provided to this Court as to the present status of these charges.

Footnote 4:Exhibit D to Bowen affirmation dated September 17, 2013.