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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Appellant, v. Hector NOBLES, Defendant-Respondent.

Decided: May 18, 2006

MAZZARELLI, J.P., FRIEDMAN, MARLOW, SULLIVAN, CATTERSON, JJ. Robert M. Morgenthau, District Attorney, New York (Gregory H. Mansfield of counsel), for appellant. Noah A. Kinigstein, New York, for respondent.

Order, Supreme Court, New York County (Budd G. Goodman, J.), entered on or about June 15, 2004, which dismissed the indictment with leave to re-present, unanimously reversed, on the law, and the indictment reinstated.

This appeal by the People concerns defendant's claimed right to dismissal of his indictment on the ground that he was deprived of an opportunity to appear before the grand jury.   In this case, defendant's lawyer withdrew notice of defendant's intent to testify before the grand jury without informing defendant.

On February 15, 2004, defendant was arraigned on the charges of criminal sale of a controlled substance in the third degree and criminal possession of marijuana in the fifth degree after being observed selling crack/cocaine.   Without consulting his client beforehand, defendant's attorney served notice of defendant's intent to testify before the grand jury.

Ten days later, again without consulting his client, the attorney withdrew notice of defendant's intent to testify before the grand jury.   Subsequently, the attorney stated that his failure to speak to defendant was a mistake.   However, he also said that he believed defendant should not testify before the grand jury.

 Defendant was indicted for criminal sale of a controlled substance in the third degree.   Represented by new counsel, defendant then moved to dismiss the indictment.   The court granted defendant's motion to dismiss the indictment, with leave to the People to re-present.   The court noted that the attorney admitted “that he behaved in a manner that almost certainly constitutes ineffective assistance of counsel.”

This Court's prior decisions in similar cases and circumstances mandate reversal (see People v. DelCerro, 299 A.D.2d 160, 753 N.Y.S.2d 358 [2002], lv. denied 99 N.Y.2d 557, 754 N.Y.S.2d 209, 784 N.E.2d 82 [2002];  People v. Senior, 15 A.D.3d 302, 789 N.Y.S.2d 681 [2005], lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ).   In DelCerro, we found that “[d]efense counsel's failure to effectuate defendant's request to testify before the grand jury did not constitute ineffective assistance of counsel” (299 A.D.2d at 161, 753 N.Y.S.2d 358, citing People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ).

 Generally, in order “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's actions” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).   Even though the attorney admitted that his failure to consult with defendant was a mistake, the attorney's belief that it was better for defendant not to testify before the grand jury could have been “a reasonable decision by counsel ․ concerned with the perils of providing a prosecutor with potential impeachment material at trial” (People v. Foy, 220 A.D.2d 220, 221, 631 N.Y.S.2d 693 [1995], lv. denied 87 N.Y.2d 901, 641 N.Y.S.2d 231, 663 N.E.2d 1261 [1995] ).