| People v Martin |
| 2015 NY Slip Op 07684 [132 AD3d 909] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Herbert Martin, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and Alexis Ascher ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered February 25, 2013, convicting him of assault in the second degreeand criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested based on his involvement in a physical altercation withtwo individuals, and was hospitalized as a result of injuries he sustained. A felonycomplaint was filed with the Criminal Court of the City of New York, Queens County.While the defendant was still under arrest in the hospital, and just prior to the expirationof the statutory deadline for his release from custody pursuant to CPL 180.80, the Peoplesubmitted the defendant's case to a grand jury, and the grand jury voted to indict thedefendant on several counts. The defendant was never arraigned on the felony complaint,but he was subsequently arraigned on the indictment.
The defendant moved to dismiss the indictment, arguing that the People deliberatelyfailed to arraign him on the felony complaint in order to avoid serving him with noticepursuant to CPL 190.50 (5) (a), and that he was therefore improperly deprived of hisright to testify before the grand jury. The Supreme Court (Camacho, J.) denied thedefendant's motion to dismiss the indictment. Following his conviction of two of thecharged offenses after a jury trial, the defendant appeals.
The People were under no obligation to serve the defendant with notice pursuant toCPL 190.50 (5) (a) of his right to testify before the grand jury since the defendant hadnot been arraigned on the felony complaint in a local criminal court (see People v Dahlbender, 23AD3d 493, 493-494 [2005]; People v Brooks, 247 AD2d 486, 486 [1998];People v Munoz, 207 AD2d 418, 419 [1994]). Nor is there anything in the recordto support the defendant's contention that the People intentionally delayed hisarraignment for the purpose of depriving him of his statutory rights under CPL 190.50(5) (a) (see People v Smoke,43 AD3d 1332, 1333 [2007]; People v Brown, 14 AD3d 356, 357 [2005]; People vJones, 281 AD2d 185, 186 [2001]; People v Brooks, 247 AD2d at 486). Inany event, the defendant did not allege in [*2]his motionpapers that he would have served written notice to the District Attorney of his request toappear before the grand jury had he been informed of the pending grand jury proceeding.As the statutory right to appear before the grand jury is expressly conditioned upon theservice of such notice (see CPL 190.50 [5] [a]; cf. People v Reynolds, 35AD2d 529 [1970]), the defendant's allegation that he was deprived of that right remainsspeculative.
Inasmuch as the defendant claims that his arraignment was unnecessarily delayed inviolation of CPL 140.20, the proper remedy at the time would have been to petition thelocal criminal court to release the defendant from custody (see People v Ramos,99 NY2d 27, 36 [2002]). A violation of CPL 140.20 does not provide a ground fordismissal of an indictment or vacatur of a judgment of conviction (see Gerstein vPugh, 420 US 103, 118-119 [1975]; People v Joe, 249 AD2d 695[1998]).
Accordingly, the Supreme Court properly denied the defendant's motion to dismissthe indictment. Eng, P.J., Chambers, Roman and Barros, JJ., concur.