| People v Ellison |
| 2014 NY Slip Op 04957 [119 AD3d 602] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Motion Ellison, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and RuthE. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered February 21, 2012, convicting him of sexual abuse in the firstdegree, luring a child, and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and the indictment is dismissed,without prejudice to the People to re-present any appropriate charges to another grandjury (see People v Beslanovics, 57 NY2d 726 [1982]); and it is further,
Ordered that pursuant to CPL 470.45, the matter is remitted to the Supreme Court,Kings County, and that court shall cause the defendant to be brought before it forthwith,at which time that court shall issue a securing order in accordance with the provisions ofCPL 210.45 (9).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the opportunity of the finder of fact to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The indictment must nonetheless be dismissed, without prejudice to the People tore-present any appropriate charges to another grand jury. Under the particularcircumstances of this case, the Supreme Court should have granted the defendant's timelymotion to dismiss the indictment on the ground that he was deprived of his right pursuantto CPL 190.50 to testify before the grand jury prior to its vote on the indictment(see CPL 190.50 [5]; People v Evans, 79 NY2d 407 [1992]; People vCostas, 248 AD2d 482, 483 [1998]).
[*2] CPL 190.50 (5) provides that a defendant has a right to appear and testify before agrand jury if he or she serves written notice of his or her intent to do so upon the DistrictAttorney before an indictment is filed. "[T]he opportunity to testify prior to any GrandJury vote is qualitatively different from and more advantageous than the opportunity totestify . . . after the Grand Jury ha[s] committed itself to a vote based on theprosecution's ex parte presentment of evidence" (People v Evans, 79 NY2d at414 [internal quotation marks omitted]; see People v Bey-Allah, 132 AD2d 76,78-79 [1987]). Thus, a defendant who provides timely notice "prior to the prosecution'spresentment of evidence and prior to the Grand Jury vote on an indictment [is] entitled totestify before the vote" (People v Evans, 79 NY2d at 413; see People v Lyons, 40 AD3d1121, 1122 [2007]; People v Duran, 266 AD2d 230, 231 [1999]).
Where, as here, the defendant has been arraigned upon an undisposed felonycomplaint, the People must notify the defendant of the grand jury proceeding and accordhim or her a reasonable time to appear (see CPL 190.50 [5] [a]; People vSmith, 87 NY2d 715, 720 [1996]; People v Evans, 79 NY2d at 412-413).Here, the People's notice pursuant to CPL 190.50 indicated that the defendant was"scheduled to testify" before the grand jury on June 8, 2010, and that his testimony wasrequired to have been given before 5:00 p.m. on that date. The record reveals that thedefendant provided the People with written notice of his intent to testify before the grandjury pursuant to CPL 190.50, at the latest, by 3:37 p.m. on June 7, 2010. Thus, thedefendant provided the People with the requisite notice more than 24 hours in advance ofhis proposed appearance. Under these circumstances, the defendant was entitled to testifyprior to the grand jury's vote.
Notwithstanding the defendant's timely notice and the People's representation that hewas "scheduled to testify" on June 8, 2010, the People presented the case to the grandjury and submitted it for a vote on the afternoon of June 7, 2010. Notably, nothing in therecord demonstrates that the defendant knew or had reason to know that the People wereplanning to present the case, and submit it for a vote on June 7, 2010, rather than June 8,2010. Under these circumstances, the defendant was deprived of his right to appear andtestify prior to the grand jury's vote, in violation of his statutory right to do so(see CPL 190.50 [5]; People v Evans, 79 NY2d at 409-415; People vCostas, 248 AD2d at 483), and dismissal of the indictment is required by CPL190.50 (5) (see People v Smith, 87 NY2d at 720; People v Costas, 248AD2d at 483).
In light of our determination, we need not reach the defendant's remainingcontention. Skelos, J.P., Dillon, Maltese and Barros, JJ., concur.