MOSS, GERALD, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
801
KA 14-00532
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GERALD MOSS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered March 17, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of stolen
property in the fourth degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted and the
indictment is dismissed without prejudice to the People to re-present
any appropriate charges under counts one and three of the indictment
to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of two counts of criminal possession of stolen
property in the fourth degree (Penal Law § 165.45 [2]). We agree with
defendant that County Court erred in denying his motion to dismiss the
indictment pursuant to CPL 210.35 (4) because he was denied his right
to testify before the grand jury. It is undisputed that, on March 1,
2013, defendant sent a written letter to the District Attorney stating
that “the defendant herein demands the right, pursuant to CPL [190.50
(5) (a)], to testify in any Grand Jury proceedings, concerning the
above titled action, prior to any voting of said Grand Jury,
concerning the allegations contained in the above titled complaint.”
We conclude that defendant’s letter satisfied the statutory
requirements for notifying the People of a request to appear before
the grand jury inasmuch as the letter was served upon the District
Attorney prior to the filing of an indictment, asserted defendant’s
right to appear in an impending grand jury proceeding, and set forth
an address to which communications may be sent (see CPL 190.50 [5]
[a]; People v Evans, 79 NY2d 407, 412). Pursuant to CPL 190.50 (5)
(b), “[u]pon service upon the district attorney of notice requesting
appearance before a grand jury pursuant to paragraph (a), the district
attorney must . . . serve upon the applicant . . . a notice that he
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KA 14-00532
will be heard by the grand jury at a given time and place” (emphasis
added). “The requirements of CPL 190.50 are to be strictly enforced”
(People v Kirk, 96 AD3d 1354, 1359, lv denied 20 NY3d 1012 [internal
quotation marks omitted]).
Here, we conclude that, after receiving defendant’s March 1,
2013 request to appear before the grand jury, the People did not
provide defendant with notice “of the time and place of the grand jury
presentation” (People v Caswell, 56 AD3d 1300, 1302, lv denied 11 NY3d
923, reconsideration denied 12 NY3d 781, cert denied 556 US 1286; see
People v Pattison, 63 AD3d 1600, 1601), as is required by CPL 190.50
(5) (b), and we therefore reverse. We note that, on March 25, 2013,
the People sent a letter to defense counsel stating that, “during the
week of April 8, 2013, the Erie County Grand Jury will hear testimony
concerning this matter. In accordance with CPL 190.50, should your
client wish to testify, please clearly state so, in writing, no later
than April 5, 2013, so that I can make the necessary arrangements to
receive his testimony.” Although that letter would have been
sufficient to satisfy the initial and separate requirement set forth
in CPL 190.50 (5) (a) that the People notify defendant of his right to
appear before the grand jury (see generally People v Sawyer, 96 NY2d
815, 816, rearg denied 96 NY2d 928), the letter did not satisfy the
requirements of CPL 190.50 (5) (b) to inform defendant of the time and
place of the grand jury presentation, which were triggered by
defendant’s March 1, 2013 request to appear before the grand jury. It
is of no moment that defendant did not respond to the People’s letter
because nothing in CPL 190.50 requires a defendant to resubmit a valid
notice pursuant to CPL 190.50 (5) (a) when he has already done so. We
further note that the prosecutor’s oral statement to defense counsel
on April 10, 2013 that “he will be presenting the matter to the Erie
County Grand Jury the next day” was insufficient to satisfy the notice
requirement inasmuch as it did not provide defendant with the
requisite notice of the time and place of the grand jury presentation
(see CPL 190.50 [5] [b]; see generally Caswell, 56 AD3d at 1302).
In light of our determination, we do not address defendant’s
contention that he was denied effective assistance of counsel or his
challenge to the severity of the sentence. We have reviewed
defendant’s remaining contentions and conclude that they are without
merit.
Entered: October 7, 2016 Frances E. Cafarell
Clerk of the Court