| People v Clark |
| 2020 NY Slip Op 02204 [182 AD3d 703] |
| April 9, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant, v Joseph G. Clark, Respondent. |
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), forappellant.
Eric K. Shillinger, Albany, for respondent.
Lynch, J. Appeal from an order of the County Court of Columbia County (Nichols,J.), entered March 8, 2018, which granted defendant's motion to dismiss theindictment.
On September 9, 2017, defendant was arraigned in the Germantown Town Court(hereinafter the local court) on two counts of criminal possession of a controlledsubstance in the third degree. The local court issued two orders, one remandingdefendant to the Columbia County Jail and the other assigning "Conflict[D]efender-[Dennis] McEvoy" in Columbia County to represent defendant. The matterwas adjourned to September 13, 2017 for a preliminary hearing. By a "[f]ax[m]emorandum" dated September 11, 2017, the local court sent copies of the orders tothe People and the Columbia County Public Defender's office—but not theassigned Conflict Defender. That same day, the People sent a notice to, among others,defendant and McEvoy advising that the matter would be presented to the grand jury, butdid not specify a presentment date. The record indicates that the notice was served ondefendant at 3:47 p.m. and faxed to McEvoy's office earlier in the day, while he was incourt on another matter. The next day, on September 12, 2017, the People presented thematter to the grand jury, which voted to indict defendant on both counts. Thereafter,County Court granted defendant's motion to dismiss the indictment pursuant to CPL190.50 (5), finding that the People failed to give defendant a reasonable opportunity toexercise his right to testify before the grand jury. The People appeal.
We affirm. In the circumstances presented, the People were required pursuant to CPL190.50 (5) (a) to "accord . . . defendant a reasonable time to exercise hisright to appear as a witness" before the grand jury. The statute "does not mandate aspecific time period for notice; rather, 'reasonable time' must be accorded to allow adefendant an opportunity to consult with counsel and decide whether to testify before a[g]rand [j]ury" (People v Sawyer, 96 NY2d 815, 816 [2001]). As County Courtduly recognized, defendant had no such opportunity, for the order assigning counsel wasnot initially provided to McEvoy by the local court. Defendant, who remainedincarcerated, was in no position to know that the appointment order had beenmisdirected. Nor did the generic presentment notice issued by the People on September11, 2017 clarify matters, as it was sent to a number of attorneys, including McEvoy. ThePeople contend, nonetheless, that defendant had an opportunity to testify after the grandjury vote but before the indictment was filed pursuant to CPL 190.50 (5) (a). Thatcontention is unavailing because, under the circumstances presented, defendant wasdeprived of an opportunity to testify before the grand jury voted (see People vEvans, 79 NY2d 407, 413 [1992]).
Egan Jr., J.P., Mulvey, Devine and Colangelo, JJ., concur. Ordered that the order isaffirmed.