Shackled Defendant Is Ok At Grand Jury Hearing Because Prosecutor’s Instruction Is Sufficient To Dispel Any Prejudice- New York Court Of Appeals Fails The Reality-Check Test With Flying Colors.

People v Griggs

New York Court of Appeals

2015 NY Slip Op 04655

Decided on: June 14, 2016

Issue: (Two Issues): 1) Whether shackles on the defendant during his grand jury testimony is prejudicial and the prosecutor’s instruction to the grand jury can dispel any prejudice; and

2) Whether the failure to make an adequate showing on the record of the need for restraints can constitute a mode of proceedings error and whether the failure to preserve these claims constitutes ineffective assistance of counsel.

Holding: The Court of Appeals held that although it was error to have the defendant testify before the grand jury in shackles, the prosecution’s instruction to the grand jury was sufficient to dispel any prejudice to the defendant. The Court also found that many of defendant’s challenges were unpreserved for the Court’s review. Defendant made no attempt to preserve his challenge to the prosecution’s questions before the Grand Jury of his awareness of the potential for increased penalties in an unrelated pending indictment as a result of his conviction in this matter. Such a challenge requires preservation.

Facts: Defendant was charged with first-degree robbery. When testifying before the Grand Jury, he was represented by counsel and shackled. While the Grand Jury was sitting and before defendant testified, defendant’s counsel made a timely request that the prosecutor arrange for defendant’s ex-girlfriend, the requested witness, who was present for the beginning of the relevant dispute, to testify before the Grand Jury pursuant to CPL 190.50[6]. Although the prosecution received the request, the prosecution did not inform the Grand Jury of defendant’s request and the prosecution incorrectly included that person’s name on the CPL 710.30 notice of witnesses that had identified defendant. The Grand Jury subsequently returned an indictment charging defendant with robbery in the first degree. Defendant moved under CPL 210.20 to dismiss the indictment based upon the legal insufficiency of the evidence presented to the Grand Jury; that motion was denied in June 2011.

At the next court appearance, defendant’s counsel questioned the adequacy of the cautionary instruction, if any, that was given regarding defendant’s appearance in restraints and mentioned an issue with the testimony of the requested witness before the Grand Jury, but said that he and the prosecutor had agreed to “address that at a later date.”A jury returned a guilty verdict in October 2011 and defendant was sentenced to a twenty-year term of imprisonment based on his status as a second violent felony offender; the Appellate Division affirmed. A Judge of the Court of Appeals granted leave to appeal where the Court affirmed holding that the defendants challenge is unpreserved for their review.

Legal Analysis: The Court of Appeals determined whether errors made by the prosecution before the Grand Jury require dismissal of the indictment and whether counsel provided ineffective assistance in failing to timely object to these errors. The Court held that these challenges are not preserved.

In this case, the defendant argues that certain errors before the Grand Jury require dismissal of the indictment, namely, the fact that he was shackled; that the prosecution asked certain cross-examination questions that referenced a pending indictment; and that the prosecution failed to inform the Grand Jury of the requested witness. None of these arguments are preserved, a fact which defendant concedes, and contrary to his assertions on appeal none implicate a mode of proceedings error.

Shackling Challenge:
Defendant argues that the preservation rule should be disregarded with respect to the shackling challenge because the prosecution inaccurately stated on the record that the Court had previously denied such a challenge when he sought to move to dismiss the indictment on that basis. No circumstances excuse the preservation requirement: defense counsel was present during the Grand Jury proceeding while defendant was shackled. In any event, the failure to make an adequate showing on the record of the need for restraints does not constitute an unwaivable mode of proceedings error, People v Cooke, 24 NY3d 1196, 1197 (2015). Accordingly this challenge is unpreserved for this court’s review.

Defendant made no attempt to preserve his challenge to the prosecution’s questions before the Grand Jury of his awareness of the potential for increased penalties in an unrelated pending indictment as a result of his conviction in this matter. Such a challenge requires preservation (see e.g. People v Bowen, 50 NY2d 915, 917 [1980]).

Prosecution’s Failure To Inform Grand Jury About Requested Witness.
Finally, defendant’s challenge to the indictment based on the prosecution’s failure to inform the Grand Jury about the requested witness is unpreserved. Here the record demonstrates that before defense counsel was relieved, he likely knew of the fact that the requested witness had not actually testified and was discussing the matter with the prosecution. Defendant relieved counsel before he could fully address the issue with the court, and defendant and his legal advisor, who were aware of and had every incentive to follow up and seek to preserve an objection on this basis, did not do so. Moreover, any error does not rise to the level of a mode of proceedings error.

Defendant attempts to argue that counsel’s failure to preserve these claims constitutes ineffective assistance of counsel. This argument fails because defendant received meaningful representation from defense counsel. A defendant has received effective assistance so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, People v Baldi, 54 NY2d 137, 146-47 (1981).

Here, defense counsel’s decision not to move to dismiss based on the questioning of defendant before the Grand Jury regarding a pending indictment was reasonable in light of the limited nature of the questioning and the remedial instruction provided. Moreover, defendant’s conduct substantially affected counsel’s ability to object and preserve arguments regarding the remaining issues. Counsel attempted to raise certain errors, particularly the shackling instruction and the absence of the requested witness’s testimony, with the court and the prosecution prior to being relieved as counsel upon defendant’s request. Counsel’s ability to ensure all relevant objections were made was undermined by defendant’s requests to proceed pro se. Furthermore, defendant and his legal advisor could have sought to cure any errors counsel made before he was relieved, and failed to do so, People v Petgen, 55 NY2d 529, 535 (1982).

For these reasons, defense counsel’s failure to object to errors in the Grand Jury proceedings did not rise to the level of ineffective assistance of counsel. Accordingly, the Appellate Division should be affirmed.