| People v Pattison |
| 2009 NY Slip Op 04540 [63 AD3d 1600] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gregory R.Pattison, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Tracey A. Brunecz of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), rendered April12, 2006. The appeal was held by this Court by order entered March 14, 2008, decision wasreserved and the matter was remitted to Chautauqua County Court for further proceedings (49AD3d 1157 [2008], amended on rearg 50 AD3d 1630 [2008]). The proceedings wereheld and completed.
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 tore-present any appropriate charges under counts one, three, four, five and six of the indictment toanother grand jury.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts of murder in the first degree (Penal Law § 125.27 [1] [a] [vi], [viii]; [b]) andone count each of murder in the second degree (§ 125.25 [1]) and conspiracy in the seconddegree (§ 105.15). We previously held the case, reserved decision and remitted the matterto County Court for a reconstruction hearing to determine whether the People complied withCPL 190.50 (5) (b) (People v Pattison, 49 AD3d 1157 [2008], amended on rearg50 AD3d 1630 [2008]; see generally People v Jordan, 153 AD2d 263, 266-267 [1990],lv denied 75 NY2d 967 [1990]). Contrary to defendant's contention, a reconstructionhearing is proper where, as here, "an error of law is committed by the hearing court whichdirectly causes the People to fail to offer potentially critical evidence," and the People shouldtherefore be afforded the opportunity to present such evidence (People v Havelka, 45NY2d 636, 643 [1978]; see generally People v Malinsky, 15 NY2d 86, 95-96 [1965]).We agree with defendant, however, that the court erred in determining following thereconstruction hearing that the People had complied with CPL 190.50 (5) (b). We conclude thatthe People failed to establish by a preponderance of the evidence that defendant was affordedactual notice that was "reasonably calculated to apprise [him] of the [g]rand [j]ury proceeding soas to permit him to exercise his right to testify" (Jordan, 153 AD2d at 266-267; seegenerally People v Terry, 225 AD2d 1058 [1996], lv denied 88 NY2d 886 [1996]).We therefore reverse the judgment, grant defendant's motion to dismiss the indictment anddismiss the indictment without prejudice to the People to re-present any appropriate chargesunder counts one, three, four, five and six of the indictment to another grand jury (seegenerally People v Massard, 139 AD2d 927 [1988]; Matter of Borrello v Balbach,112 AD2d 1051, 1052-1053 [1985]). Present—Scudder, P.J., Martoche, Centra, Fahey andGorski, JJ.