PEOPLE v. FIELDS (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered December 2, 1996, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the indictment is dismissed, with leave to present the matter to another Grand Jury.

The defendant was arrested after he was identified in a lineup, at which he was then represented by attorney Theodore Kasapis.   Two days later, the defendant was arraigned in criminal court.   He was represented, for arraignment purposes only, by Andrew Schatkin, who at that time served the prosecutor with notice that the defendant intended to testify before the Grand Jury (see, CPL 190.50[5][b] ).

After counsel served the defendant's notice, the prosecutor advised the court that the defendant's Grand Jury presentation was scheduled for the next day, April 26, 1996.   During the colloquy which ensued, the court, recalling Mr. Kasapis's prior involvement in the proceedings, recommended his appointment as the defendant's assigned counsel and, cognizant of the impending Grand Jury date, directed the prosecutor to apprise Kasapis on an expedited basis.   Mr. Schatkin then informed the court that it was “very important” that Mr. Kasapis receive prompt notice because, “[t]his man does have a strong wish to testify”.   The People, however, did not notify Mr. Kasapis, as the court had directed.

The following day, with neither the defendant nor the assigned counsel present, the Grand Jury presentation was adjourned at the People's request until Monday, April 29, 1996.   Nothing in the record indicates that the People served notice of the adjourned presentation date.   Neither the defendant nor anyone representing him appeared when the Grand Jury subsequently reconvened on the adjourned date and voted an indictment charging the defendant with, inter alia, robbery in the first degree.

On appeal, the defendant argues that by virtue of the above-described events, he was deprived of the right to the effective assistance of counsel at the Grand Jury proceeding.   We agree.

The defendant was given only one day's notice of the originally-scheduled Grand Jury presentation (cf., People v. Evans, 79 N.Y.2d 407, 412-413, 583 N.Y.S.2d 358, 592 N.E.2d 1362;  People v. Degnan, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808;  People v. Gini, 72 A.D.2d 752, 421 N.Y.S.2d 269;  People v. Goldsborough, 150 Misc.2d 345, 568 N.Y.S.2d 999).   At the time the one-day notice was provided, no one had been formally assigned to represent the defendant, even though the Grand Jury presentation was scheduled to take place the very next morning.   Although the court apparently intended to assign Mr. Kasapis to represent the defendant, that assignment was never made, and the People did not inform Kasapis of the impending Grand Jury presentation.   As a result of the confusion surrounding the assignment of counsel, the defendant was without representation when the Grand Jury convened the next day.   Although the original presentment was adjourned, nothing in the record indicates that the People provided notice of the adjourned date.

The Court of Appeals has characterized the defendant's right to testify before the Grand Jury as a “valued right”, which must be “scrupulously protected” (People v. Smith, 87 N.Y.2d 715, 721-722, 642 N.Y.S.2d 568, 665 N.E.2d 138;  see, People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723;  People v. Evans, supra, 79 N.Y.2d 407, 413-414, 583 N.Y.S.2d 358, 592 N.E.2d 1362;  People v. Degnan, supra, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808).   Here, the events which transpired effectively deprived the defendant of his right to appear and testify before the Grand Jury (see, People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782;  cf., People v. Ferrara, 99 A.D.2d 257, 259-260, 472 N.Y.S.2d 407).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.