        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

851
KA 09-01582
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MICHAEL S. BRUMFIELD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL S. BRUMFIELD, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA DREHER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered May 27, 2009. The judgment convicted
defendant, upon a jury verdict, of attempted criminal possession of a
weapon in the second degree, attempted criminal possession of a weapon
in the third degree, obstructing governmental administration in the
second degree and resisting arrest.

     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 two through five of the
indictment to another grand jury.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of attempted criminal possession of a weapon in
the second degree (Penal Law §§ 110.00, 265.03 [3]), attempted
criminal possession of a weapon in the third degree (§§ 110.00, 265.02
[1]), obstructing governmental administration in the second degree (§
195.05) and resisting arrest (§ 205.30). Defendant’s contention in
his main and pro se briefs that the evidence is legally insufficient
to support the conviction of those counts is preserved for our review
only insofar as it relates to the crimes of attempted criminal
possession of a weapon in the second and third degrees (see People v
Gray, 86 NY2d 10, 19). In any event, that contention lacks merit (see
generally People v Bleakley, 69 NY2d 490, 495). Additionally, viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence, and thus we reject
defendant’s contention to that effect (see generally Bleakley, 69 NY2d
at 495). Defendant also contends in his pro se supplemental brief
                                 -2-                           851
                                                         KA 09-01582

that count two of the indictment, charging attempted criminal
possession of a weapon in the second degree, was jurisdictionally
defective because the People did not negate the “home or place of
business” exception (§ 265.03 [3]). We reject that contention. That
exception is inapplicable where, as here, a defendant “has been
previously convicted of any crime” (§ 265.02 [1]; see § 265.03 [3]).
We note that the People properly alleged defendant’s prior conviction
in a special information filed with the indictment (see CPL 200.60).

     Defendant further contends in his main brief that County Court
erred in denying his motion to dismiss the indictment pursuant to CPL
210.20 (1) (c) because he was denied his right to testify before the
grand jury. We agree. Defendant served the People with “a notice
requesting appearance before [the] grand jury” pursuant to CPL 190.50
(5) (b) and appeared at the appropriate time and place. After the
People presented defendant with a waiver of immunity form, defendant
deleted three paragraphs from that form and then signed the form
before a notary public. Defendant refused to sign the waiver of
immunity form without any deletions, and the People did not permit
defendant to testify before the grand jury.

     CPL 190.50 (5) provides that, if a defendant serves upon the
People a notice of his intent to testify before the grand jury,
appears at the appropriate time and place, and signs and submits to
the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the
defendant “must be permitted to testify before the grand jury” (CPL
190.50 [5] [b]; see CPL 190.50 [5] [a]). In the event that the
defendant complies with those procedures and is thereafter not
permitted to testify, the appropriate remedy is dismissal of the
indictment (see CPL 190.50 [5] [c]). The parties do not dispute that
defendant complied with the first two requirements of the statute.
The only dispute is whether defendant signed “a waiver of immunity
pursuant to section 190.45” (CPL 190.50 [5] [b]). CPL 190.45 (1)
provides that a waiver of immunity “is a written instrument” in which
a person who is to testify before the grand jury stipulates that he or
she “waives [the] privilege against self-incrimination and any
possible or prospective immunity to which he [or she] would otherwise
become entitled, pursuant to [CPL] 190.40, as a result of giving
evidence in such proceeding.” Here, the paragraphs in the waiver of
immunity form that defendant left intact stated that defendant waived
his privilege against self-incrimination and any immunity to which he
would otherwise be entitled pursuant to CPL 190.40. Thus, defendant
signed a waiver of immunity form that complied with the requirements
of CPL 190.45 (1) and was therefore required to be permitted to
testify before the grand jury (see CPL 190.50 [5] [b]). It is well
settled that a defendant’s statutory right to testify before the grand
jury “ ‘must be scrupulously protected’ ” (People v Smith, 87 NY2d
715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude
that, because defendant complied with the requirements of CPL 190.50
(5) but was nevertheless denied his right to testify before the grand
jury, the court erred in denying defendant’s motion to dismiss the
indictment. We therefore reverse the judgment of conviction, grant
the motion, and dismiss the indictment without prejudice to the People
to re-present any appropriate charges under counts two through five of
                                 -3-                           851
                                                         KA 09-01582

the indictment to another grand jury (see generally People v Pattison,
63 AD3d 1600, 1601, lv denied 13 NY3d 799).

     In view of our determinations, we do not address defendant’s
remaining contentions raised in his main and pro se supplemental
briefs.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
