Tuesday, October 21, 2014

Motion to dismiss the indictment based on denial of the defendant's right to testify before the grand jury; revisited

The October 17th News Picks email update to New York State Defender Association members (a great organization and valuable source for criminal law developments, $75/year for attorneys, $15/year for students, a bargain at twice the price) included a summary of People v Chappelle, 2014 WL 5285479 [3rd Dept 10/16/14], an important case from the Third Department.

Mr. Chappelle was arraigned without counsel.  The next day, the prosecution’s notice of the right to testify before the grand jury was served on Mr. Chappelle personally, in jail, as he was still without counsel and, in fact, did not have any contact with counsel until after he was indicted.  More than 5 days after arraignment on the indictment, defense counsel moved to dismiss the indictment based on the violation of defendant’s right to testify before the grand jury. The trial court denied the motion as untimely (see, CPL § 190.50[5][c]).  The defendant then pled guilty and waived his right to appeal.

On appeal, despite the defendant’s appeal waiver (which the Third Department found to be invalid) the Court reversed the conviction on the grounds that the defendant was denied his constitutional right to counsel at a critical stage of the proceedings, an argument made for the first time on appeal. The Court noted that although defendant’s guilty plea forfeited his claim that his statutory right to testify under CPL § 190.50 was violated, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before the lower court (citing People v Kinchen, 60 NY2d 772, 773 [1983]).  The Court then held defendant’s inability to consult with counsel concerning whether to testify before the grand jury resulted in a denial of defendant’s constitutional right to counsel and required reversal of the conviction.

So, a defendant deprived of his constitutional right to counsel at a critical stage of the proceedings may raise that error at any time, unbounded by statutory time constraints, and without regard on appeal to whether the issue was properly preserved below.  It would be hard to overstate the significance of this decision.  At the same time, the rationale seems obvious.  Why a ground for dismissal of the indictment under § 190.50[5][c] at all?  Because testifying, or not, before the grand jury is a critical stage of the proceedings at which the defendant has a constitutionally-guaranteed right to counsel. While there are laudable reasons for requiring such a violation to be raised promptly, those reasons only affect the defendant’s statutory rights, and will not excuse a constitutional violation.

Thus, where a defendant moves to dismiss the indictment based on allegations that he was deprived of the right to counsel prior to indictment, the trial court that elects to strictly adhere to the CPL § 190.50 time frame for such motions may see that defendant before it again a couple years down the line. 

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