PEOPLE v. PATTISON (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the first degree (Penal Law § 125.27[1][a][vi], [viii];  [b] ) and one count each of murder in the second degree (§ 125.25[1] ) and conspiracy in the second degree (§ 105.15).   We previously held the case, reserved decision and remitted the matter to County Court for a reconstruction hearing to determine whether the People complied with CPL 190.50(5)(b) (People v. Pattison, 49 A.D.3d 1157, 854 N.Y.S.2d 266, amended on rearg. 50 A.D.3d 1630, 857 N.Y.S.2d 925;  see generally People v. Jordan, 153 A.D.2d 263, 266-267, 550 N.Y.S.2d 917, lv. denied 75 N.Y.2d 967, 556 N.Y.S.2d 252, 555 N.E.2d 624).   Contrary to defendant's contention, a reconstruction hearing is proper where, as here, “an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence,” and the People should therefore be afforded the opportunity to present such evidence (People v. Havelka, 45 N.Y.2d 636, 643, 412 N.Y.S.2d 345, 384 N.E.2d 1269;  see generally People v. Malinsky, 15 N.Y.2d 86, 95-96, 262 N.Y.S.2d 65, 209 N.E.2d 694).   We agree with defendant, however, that the court erred in determining following the reconstruction hearing that the People had complied with CPL 190.50(5)(b).  We conclude that the People failed to establish by a preponderance of the evidence that defendant was afforded actual notice that was “reasonably calculated to apprise [him] of the [g]rand [j]ury proceeding so as to permit him to exercise his right to testify” (Jordan, 153 A.D.2d at 266-267, 550 N.Y.S.2d 917;  see generally People v. Terry, 225 A.D.2d 1058, 639 N.Y.S.2d 215, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).   We therefore reverse the judgment, grant defendant's motion to dismiss the indictment and dismiss the indictment without prejudice to the People to re-present any appropriate charges under counts one, three, four, five and six of the indictment to another grand jury (see generally People v. Massard, 139 A.D.2d 927, 528 N.Y.S.2d 954;  Matter of Borrello v. Balbach, 112 A.D.2d 1051, 1052-1053, 492 N.Y.S.2d 822).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the motion is granted and the indictment is dismissed without prejudice to the People to re-present any appropriate charges under counts one, three, four, five and six of the indictment to another grand jury.

MEMORANDUM: