| People v Brumfield |
| 2013 NY Slip Op 06120 [109 AD3d 1105] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael S. Brumfield, Appellant. |
—[*1] Michael S. Brumfield, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Amanda Dreher of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered May 27, 2009. The judgment convicted defendant, upon a jury verdict, ofattempted criminal possession of a weapon in the second degree, attempted criminalpossession of a weapon in the third degree, obstructing governmental administration inthe second degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the motion is granted and the indictment is dismissed without prejudice to thePeople to re-present any appropriate charges under counts two through five of theindictment to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]), attempted criminal possession of a weapon in thethird degree (§§ 110.00, 265.02 [1]), obstructing governmentaladministration in the second degree (§ 195.05) and resisting arrest (§205.30). Defendant's contention in his main and pro se briefs that the evidence is legallyinsufficient to support the conviction of those counts is preserved for our review onlyinsofar as it relates to the crimes of attempted criminal possession of a weapon in thesecond and third degrees (see People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, that contention lacks merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Additionally, viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence, and thus we rejectdefendant's contention to that effect (see generally Bleakley, 69 NY2d at 495).Defendant also contends in his pro se supplemental brief that count two of theindictment, charging attempted criminal possession of a weapon in the second degree,was jurisdictionally defective because the People did not negate the "home or place ofbusiness" exception (§ 265.03 [3]). We reject that contention. That exception isinapplicable where, as here, a defendant "has been previously convicted of any crime"(§ 265.02 [1]; see § 265.03 [3]). We note that the People properlyalleged defendant's prior conviction in a special information filed with the indictment(see CPL 200.60).[*2]
Defendant further contends in his main brief thatCounty Court erred in denying his motion to dismiss the indictment pursuant to CPL210.20 (1) (c) because he was denied his right to testify before the grand jury. We agree.Defendant served the People with "a notice requesting appearance before [the] grandjury" pursuant to CPL 190.50 (5) (b) and appeared at the appropriate time and place.After the People presented defendant with a waiver of immunity form, defendant deletedthree paragraphs from that form and then signed the form before a notary public.Defendant refused to sign the waiver of immunity form without any deletions, and thePeople did not permit defendant to testify before the grand jury.
CPL 190.50 (5) provides that, if a defendant serves upon the People a notice of hisintent to testify before the grand jury, appears at the appropriate time and place, and signsand submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," thedefendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b];see CPL 190.50 [5] [a]). In the event that the defendant complies with thoseprocedures and is thereafter not permitted to testify, the appropriate remedy is dismissalof the indictment (see CPL 190.50 [5] [c]). The parties do not dispute thatdefendant complied with the first two requirements of the statute. The only dispute iswhether defendant signed "a waiver of immunity pursuant to section 190.45" (CPL190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a writteninstrument" in which a person who is to testify before the grand jury stipulates that he orshe "waives [the] privilege against self-incrimination and any possible or prospectiveimmunity to which he [or she] would otherwise become entitled, pursuant to [CPL]190.40, as a result of giving evidence in such proceeding." Here, the paragraphs in thewaiver of immunity form that defendant left intact stated that defendant waived hisprivilege against self-incrimination and any immunity to which he would otherwise beentitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form thatcomplied with the requirements of CPL 190.45 (1) and was therefore required to bepermitted to testify before the grand jury (see CPL 190.50 [5] [b]). It is wellsettled that a defendant's statutory right to testify before the grand jury " 'must bescrupulously protected' " (People v Smith, 87 NY2d 715, 721 [1996], quotingPeople v Corrigan, 80 NY2d 326, 332 [1992]). We conclude that, becausedefendant complied with the requirements of CPL 190.50 (5) but was neverthelessdenied his right to testify before the grand jury, the court erred in denying defendant'smotion to dismiss the indictment. We therefore reverse the judgment of conviction, grantthe motion, and dismiss the indictment without prejudice to the People to re-present anyappropriate charges under counts two through five of the indictment to another grandjury (see generally People vPattison, 63 AD3d 1600, 1601 [2009], lv denied 13 NY3d 799 [2009]).
In view of our determinations, we do not address defendant's remaining contentionsraised in his main and pro se supplemental briefs. Present—Scudder, P.J.,Peradotto, Carni, Valentino and Whalen, JJ.