People v. Jordan

153 A.D.2d 263, 550 N.Y.S.2d 917, 1990 N.Y. App. Div. LEXIS 1304
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 5, 1990
StatusPublished
Cited by32 cases

This text of 153 A.D.2d 263 (People v. Jordan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Jordan, 153 A.D.2d 263, 550 N.Y.S.2d 917, 1990 N.Y. App. Div. LEXIS 1304 (N.Y. Ct. App. 1990).

Opinion

[264]*264OPINION OF THE COURT

Kooper, J.

The question to be resolved on appeal is whether the People afforded the defendant notice of his right to testify before the Grand Jury in conformity with the requirements of CPL 190.50 (5) Cb). For the reasons that follow, we conclude that the notice provided by the People was insufficient and affirm the order appealed from.

I.

On April 18, 1988, the defendant Kenneth Jordan was arraigned on a felony complaint charging him, inter alia, with assault in the second degree. At his arraignment, the defendant was represented by the Legal Aid Society, which appeared on his behalf for the purposes of "arraignment only”. During arraignment, the defendant’s Legal Aid counsel entered a plea of not guilty and served the People with a notice pursuant to CPL 190.50 (5) (a), indicating that the defendant wished to exercise his right to testify before the Grand Jury. The notice listed the attorney-in-charge and address of the Legal Aid Society. Also, the court file in this matter bore the notation: "the defendant upon appearing for arraignment: was assigned Legal Aid Society counsel for arraignment only” and was stamped: "defendant to retain attorney”.

Thereafter, on April 23, 1988, the People hand delivered to the Legal Aid Society a notice advising that the case would be presented to a Grand Jury on May 12, 1988. Apparently, the Legal Aid Society failed to inform the defendant that it had received the People’s notice. On May 5, 1988, seven days prior to the scheduled Grand Jury proceeding, Joseph W. Muldoon, Esq., filed a notice of appearance and, according to the defendant, "appeared in court on that date” on his behalf. Although the record does not indicate precisely what type of court appearance Mr. Muldoon made, the People do not deny that they were aware of Mr. Muldoon’s entry into the case. The case was subsequently presented, as scheduled, to the Grand Jury on May 12, 1988. The defendant, however, did not appear. An indictment was thereafter handed up charging the defendant, inter alia, with assault in the second degree and assault in the third degree.

II.

By notice dated June 20, 1988, the defendant moved to [265]*265dismiss the indictment pursuant to CPL 190.50 (5) (c) "on the [ground] that the People did not give the defendant an opportunity to testify, in his own behalf, before the Grand Jury”. In addition to the facts already related, defense counsel argued that the entire incident arose out of a barroom brawl that spilled out onto the street and that, "[y]our affirmant has interviewed the defendant and one of his witnesses and I believe, based upon their testimony, that the Grand Jury should be given the opportunity to hear both sides of the story”. Counsel added that, "I believe that if they hear the testimony as to the entire incident there will be no true bill voted against the defendant”. In opposition to the motion, the People argued, inter alia, that CPL 190.50 (5) (a) requires that the defendant in his notice of intent to testify, "state * * * an address to which communications may be sent” and that the People fully complied with the statute by serving their notice at the address specified in the defendant’s notice.

III.

By order dated July 14, 1988, the Supreme Court, Queens County, granted the defendant’s motion, dismissing the indictment with leave to re-present. In concluding that the notice provided was deficient, the court held that, "[w]hen it appears that a Legal Aid attorney stands up for a defendant at the time of arraignment for that purpose only, subsequent service of the CPL § 190.50 notice is defective unless it is sent to both the Legal Aid Society and the defendant, or subsequently retained counsel”. The court further observed that "[t]he slight inconvenience involved in ascertaining defendant’s residence address from the Criminal Justice Agency interview report or some other appropriate document is minimal when compared to the grave injustice imposed upon a defendant who has been deprived of his right to testify”.

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Bluebook (online)
153 A.D.2d 263, 550 N.Y.S.2d 917, 1990 N.Y. App. Div. LEXIS 1304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jordan-nyappdiv-1990.