| People v Ruffino |
| 2010 NY Slip Op 03194 [72 AD3d 1353] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Michael J.Ruffino, Respondent. |
—[*1] Kelly A. Damm, Ithaca, for respondent.
Mercure, J.P. Appeal from an order of the County Court of Tompkins County (Ames, J.),entered June 8, 2009, which granted defendant's motion to dismiss the indictment.
Defendant was arraigned in Newfield Town Court on September 8, 2008 on the felonycharge of criminal possession of stolen property in the second degree, and appeared at apreliminary hearing in Danby Town Court on September 9, 2008 on this charge, represented byassigned counsel. Pursuant to the policy of the Assigned Counsel's office of Tompkins County,defendant's assigned counsel representation was limited to the time that defendant remained injail and, once released, defendant was required thereafter to apply for assigned counselrepresentation. Defendant was thereafter released from jail and appeared before Town Courtagain on October 7, 2008 without counsel, informing the court and the People that hisapplication for assigned counsel had been denied. Defendant requested that he be assignedcounsel by the court, which withheld decision.
In early November 2008, the People served notice of a pending grand jury presentation onhis former assigned counsel, whose representation had ended in September 2008. Counsel didnot forward the notice to defendant or otherwise inform him of the pending presentation, nor didthe People serve notice on defendant himself. On December 2, 2008, defendant again appeared[*2]in Town Court and reiterated that he was still unrepresentedby counsel. That same day, without any appearance by defendant, the matter was presented tothe grand jury. After he was indicted on December 9, 2008, defendant moved to dismiss theindictment on the ground that he was not notified of the pending grand jury presentation.Following a hearing, County Court granted defendant's motion and dismissed the indictment.The People now appeal.
We affirm. Under the circumstances of this case, CPL 190.50 (5) (a) required that "thedistrict attorney . . . notify the defendant or his attorney of the prospective orpending grand jury proceeding and accord the defendant a reasonable time to exercise his [orher] right to appear as a witness therein." It is well established that such notice "must bereasonably calculated to apprise the defendant of the [g]rand [j]ury proceeding [and] permit him[or her] to exercise his [or her] right to testify" (People v Wise, 236 AD2d 739, 740-741[1997] [citation omitted], lv denied 89 NY2d 1103 [1997]). Here, the People providednotice of the pending grand jury presentation to counsel, whose assignment to representdefendant had ended in September 2008.
The People contend that such notice satisfied CPL 190.50 (5) because assigned counsel wasdefendant's attorney of record and no indication had been provided to them that counsel'srepresentation had ceased (see People v Ward, 234 AD2d 723, 723-724 [1996], lvdenied 89 NY2d 1042 [1997]). This assertion is contradicted by the record, however, whichreveals that the People were aware that assigned counsel did not represent defendant as early asOctober 7, 2008, a month before notice of the grand jury presentation was given. Further, thePeople were aware that defendant was still unrepresented on the day of the grand jurypresentation. While assigned counsel and the Assigned Counsel's office may have been remiss infailing to either inform the People of the change in representation or forward the notice todefendant, it is the "independent obligation of the People to furnish the defendant proper noticeof the [g]rand [j]ury presentation" (People v Jordan, 153 AD2d 263, 268 [1990], lvdenied 75 NY2d 967 [1990]). Inasmuch as the People notified only defendant's formercounsel, despite actual knowledge that defendant was no longer represented by her, we concludethat the People failed to provide notice reasonably calculated to apprise defendant of the pendingproceeding (see id.; cf. People v Ward, 234 AD2d at 723-724).
Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed.