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Section 139 of the Code of Criminal Procedure

In this Criminal case, the People appealed from an order, which granted the defendant’s motion to dismiss the Indictment, with leave to represent the matter to the Grand Jury on the ground that he was deprived of his right to appear before the Grand Jury pursuant to CPL 190.50.

A Queens County Criminal lawyer said that after an incident which occurred in Queens County in October 1995, the defendant was arraigned on a felony complaint. The felony complaint charged the defendant with robbery in the third degree and grand larceny in the fourth degree.

At his arraignment, the defendant was duly served with notice that the charges in the felony complaint would be presented to the Grand Jury. The defendant ultimately declined to testify before the Grand Jury. The defendant was subsequently charged in an indictment with robbery in the first degree and robbery in the third degree.

The factual allocution in the indictment related to the incident, and specified, with respect to the charge of robbery in the first degree, that the defendant “used or threatened the immediate use of a dangerous instrument to wit: a knife”.

By notice of motion, the defendant moved to dismiss the indictment on the ground that he had not been notified of the specific higher charge that was considered by the Grand Jury. Accordingly, the defendant asserted he was not able to make an informed choice as to whether to testify before the Grand Jury and his right to so testify was thereby improperly compromised.

The Supreme Court granted the defendant’s motion, holding: “nowhere in the felony complaint or any notices served on the defendant, was there any mention of any information relating to a weapon which would have put the defendant on notice of the nature and scope of the grand jury proceedings”.

The Court reversed and reinstated the indictment. It held that where a defendant has been “arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is the subject of the prospective or pending grand jury proceeding, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein”.

Contrary to the defendant’s assertion, the People are not required “to give notice regarding the expanded scope of the Grand Jury proceedings”. Rather, as we have previously noted, once the People have “notified the defendant that the charges in the felony complaint would be presented to the Grand Jury, the People have satisfied their statutory obligation”.

Here, the People met their statutory obligation when they gave notice regarding the charges of robbery in the third degree and grand larceny in the fourth degree listed in the felony complaint. The Court noted that the defendant cannot legitimately argue that he was not aware of the potential scope of the proceedings inasmuch as the circumstances pertaining to the enhanced charge in the indictment involved the same complainant and the identical incident set forth in the felony complaint.

The underlying criminal conduct was “clearly set forth in the felony complaint and defendant should have been aware that the nature and scope of the Grand Jury’s inquiry could lead to less or more serious charges”.

In another criminal case, the People appealed from an order sustaining a writ of habeas corpus and directing petitioner’s discharge.

A Queens County Criminal lawyer said that petitioner stole a car and drove it to Boston, Massachusetts. About three weeks later he was indicted in Boston for three offenses, one of which was the offense of operating the stolen car in Boston, without authority from the owner, after petitioner’s right to operate automobiles in Massachusetts without a license had been suspended.

After a trial in which the owner of the car testified, petitioner was convicted of all three offenses; he was given a suspended sentence of two years for the offense of driving without authority, and a sentence of six months for the other offenses. The suspension of the two-year sentence was thereafter revoked, and he eventually served both sentences.

In the meantime, petitioner had been indicted in Queens County for the theft of the first car. The indictment contained two counts, namely (a) taking, removing, operating and driving the car in Queens County, for the operator’s own profit, use and purpose, and without the owner’s consent, Penal Law, § 1293-a; and (b) ordinary grand larceny, Penal Law, § 1290. After his release from the Massachusetts jail, petitioner returned to New York and appears to have been apprehended. He thereupon pleaded guilty to petit larceny under the Queens County indictment, and was remanded to the city prison for sentence.

Thereafter he obtained his release on a writ of habeas corpus based upon his claim that the Queens indictment was for the same offense as that for which he had been convicted in Boston, and that the Queens indictment consequently subjected him to double jeopardy.

In the Court’s opinion, the Massachusetts and Queens County offenses were different in fact and in law, as each referred to an act done at a different time and place, and each involved elements not found in the other. Moreover, as the offense charged in Queens County was not committed in Massachusetts or subject to its jurisdiction, and as the offense charged in Massachusetts was not committed in Queens County or subject to its jurisdiction, neither section 33 of the Penal Law nor section 139 of the Code of Criminal Procedure is applicable. Hence, the claim of double jeopardy had no merit.

Taking of a property of another by force and intimidation is considered as robbery. Here in Stephen Bilkis and Associates, our Queens County Robbery attorneys will help you prosecute these robbers by bringing your concerns before the Courts of Justice. We will ensure that these robbers will be answerable to the acts they committed. For more inquiries, you can consult our Queens County Criminal lawyers now for a reliable advice.

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