| People v Hymes |
| 2014 NY Slip Op 08202 [122 AD3d 1440] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Misaiah Hymes, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered July 15, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree.
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 the sole count of the indictment toanother grand jury.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the second degree (Penal Law § 140.25 [2]). Weagree with defendant that County Court erred in denying his motion to dismiss theindictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testifybefore the grand jury. The prosecutor notified defendant and his counsel at thearraignment on the felony complaint that the matter would be presented to the grand jurythe next morning, in less than 24 hours. Later that day, defense counsel notified the courtthat he could no longer represent defendant due to a conflict of interest. The followingmorning, after the grand jury voted to indict defendant, he was assigned new counsel.Defense counsel objected to the short notice of the grand jury proceeding and gave theprosecutor written notice of defendant's intent to testify. The prosecutor offereddefendant the opportunity to testify before the grand jury before it filed the indictment,but refused defendant's request to testify before a different grand jury.
We agree with defendant that he was not given "reasonable time to exercise his rightto appear as a witness" before the grand jury (CPL 190.50 [5] [a]). "CPL 190.50 (5) (a)does not mandate a specific time period for notice; rather, 'reasonable time' must beaccorded to allow a defendant an opportunity to consult with counsel and decide whetherto testify before a [g]rand [j]ury" (People v Sawyer, 96 NY2d 815, 816 [2001],rearg denied 96 NY2d 928 [2001]). Under "the particular facts" of this case(id.), including the less than 24 hours' notice of the grand jury proceeding andassigned counsel's withdrawal from representation, we conclude that defendant did nothave reasonable time to consult with counsel and decide whether to testify before thecase was presented to the grand jury (see People v Degnan, 246 AD2d 819, 820[1998]; see also People v Fields, 258 AD2d 593, 594 [1999]; cf. Sawyer,96 NY2d at 817). Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino,JJ.