People v. Sawyer

274 A.D.2d 603, 711 N.Y.S.2d 45, 2000 N.Y. App. Div. LEXIS 7597
Appellate Division of the Supreme Court of the State of New York·Decided July 6, 2000·Published·Cited by 21 cases

Opinions

—Mercure, J.

Appeals (1) from a judgment of the County Court of Tompkins County (Barrett, J.), rendered October 1, 1997, upon a verdict convicting defendant of the crimes of murder in the second degree, criminal possession of a weapon in the third degree and assault in the second degree, and (2) by permission, from an order of said court, entered June 4, 1998, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In the early morning hours of May 3, 1997, in the City of Ithaca, Tompkins County, defendant stabbed Richard King to death by plunging a steak knife into his chest, perforating his aorta. The incident took place at the apartment of defendant’s half-sister, Anita Nelson, who was King’s paramour. Police officers questioned defendant at the scene and then took him to the police station where he was interviewed on videotape for approximately three hours. During the course of the questioning, defendant acknowledged his involvement in the incident but indicated that King had been attempting to break into the apartment and that the stabbing was committed in self-defense, a scenario that proved to be very much at odds with that related by Nelson.

In the afternoon hours of May 3, 1997, defendant appeared in a local criminal court and was arraigned on a felony complaint charging him with murder in the second degree. Annexed to the complaint was a three-page typewritten statement signed by Nelson and notices of the People’s intention to use admissions by defendant, including his videotaped interview, at trial. Arrangements were made to have counsel assigned, and defendant was interviewed by his counsel at the County Jail on Sunday, May 4, 1997. At 9:00 a.m. the following day, the District Attorney advised defendant’s counsel of his intention to present the matter to a Grand Jury on May 6, 1997 at 1:30 p.m. and that, if defendant desired to testify, arrangements would be made to have him produced. Defendant was arraigned on the felony complaint with counsel shortly thereafter. At that time, defendant’s counsel served a notice demanding that he be provided with a copy of the videotape of [604]*604defendant’s statement to the police, all telephonic and police transmission recordings from May 2, 1997 at 6:00 p.m. until May 4, 1997 at 6:00 p.m., all appropriate toxicology screens obtained in the course of the autopsy of King’s body and anything constitutionally required to be produced.

In a letter also delivered on May 5, 1997, defendant’s counsel advised the District Attorney that a refusal to provide the demanded materials, particularly defendant’s own prior written, oral and videotaped statements, would deny defendant his right to effective assistance of counsel, due process, his Rosario rights and his right to a fair presentment to the Grand Jury. The letter further indicated that the scheduling of the Grand Jury presentment denied defendant the right to consult with counsel, due process and an adequate opportunity to identify additional witnesses who might be in a position to provide a full and fair account of the events of May 3, 1997. Finally, the letter advised, “it appears as though the defendant has had almost no sleep for the past 72 hours, and your rush to the Grand Jury may force him to testify with practically no sleep for approximately 100 hours.” Nonetheless, defendant’s counsel gave notice of defendant’s intention to testify before the Grand Jury. The District Attorney responded with another letter delivered the same day, stating that the requested discovery would not be provided because there was no right to discovery at that stage of the proceedings. That evening, defendant’s counsel examined the crime scene and then consulted with defendant. The following day, May 6, 1997, defendant’s counsel delivered a further letter to the District Attorney advising that defendant would not be testifying before the Grand Jury and essentially reiterating the concerns expressed in his May 5, 1997 letter.

Following the People’s presentment, the Grand Jury indicted defendant for murder in the second degree based upon intentional conduct (count one) and depraved indifference to human life (count two), assault in the second degree and criminal possession of a weapon in the third degree. Defendant moved to dismiss the indictment pursuant to CPL 190.50 (5) (a) upon the ground that he was not given a reasonable time to exercise his right to appear as a witness before the Grand Jury. County Court denied the motion and the matter proceeded to trial. The jury convicted defendant of depraved indifference murder, assault in the second degree and criminal possession of a weapon in the third degree. Defendant unsuccessfully moved to set aside the verdict pursuant to CPL article 330 and was then sentenced to concurrent prison terms [605]*605aggregating 20 years to life. He subsequently moved pursuant to CPL article 440 to vacate the judgment of conviction. He now appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

We affirm. Initially, we are not persuaded that the notice provided by the People deprived defendant of a reasonable opportunity to testify before the Grand Jury. To the contrary, we conclude that the People satisfied their obligation of providing notice that was reasonably calculated to apprise defendant of the Grand Jury proceeding and permit him to exercise his right to testify (see, People v Wise, 236 AD2d 739, 740-741, lv denied 89 NY2d 1103; People v Jordan, 153 AD2d 263, 266-267, lv denied 75 NY2d 967). Pursuant to CPL 190.50 (5) (a), the People are required to notify a defendant of a pending Grand Jury proceeding where, as here, the defendant has been arraigned upon an undisposed felony complaint. The statute sets forth no time limitation for giving such notice, but merely provides that defendants must be accorded a “reasonable time” to exercise their right to appear as a witness before the Grand Jury (see, CPL 190.50 [5] [a]). Notably, as employed in CPL 190.50 (5) (a) “ ‘[t]he concept of reasonableness is not a stagnant one and must be applied to the particular facts of any given case’ ” (People v Jordan, supra, at 267, quoting People v Taylor, 142 Mise 2d 349, 351).

Here, it is undisputed that defendant’s counsel received notice from the District Attorney approximately IV2 business days before the scheduled Grand Jury presentment. In his motion to dismiss the indictment, defendant gave no indication as to how this time period was unreasonable but merely averred that he wanted to testify before the Grand Jury but was too tired to do so. His counsel’s affidavit reiterated defendant’s pleas of tiredness and discomfort and contended that it was unfair to have defendant testify before the Grand Jury without first having an opportunity to review his three-hour videotaped statement. Paténtly, defense counsel’s focus during this IV2day period was not the timing of the presentment but, rather, his repeated attempts to discover specified items of evidence that he had no right to receive at that point in the proceedings (see, Matter of Brown v Appelman, 241 AD2d 279, 283-284; Matter of Hynes v Cirigliano, 180 AD2d 659, lv denied 79 NY2d 757). Thus, in contrast to the arguments now advanced, defendant’s position in County Court was not that he had insufficient time to prepare his Grand Jury testimony but that he should have been provided the requested discovery materials prior to testifying.

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People v. Sawyer, 274 A.D.2d 603, 711 N.Y.S.2d 45, 2000 N.Y. App. Div. LEXIS 7597 (N.Y. Ct. App. 2000).

274 A.D.2d 603 (People v. Sawyer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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