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People v. Norbert

Other Lower Courts

December 28, 2007

The People of the State of New York,
Charles Norbert, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Cynthia Lynch, Esq., Assistant District Attorney, For the People

Steven Banks, Esq., For the Defendant


John M. Leventhal, J.

The issue presented is whether the defendant was deprived of his statutory right to testify before the Grand Jury where he was neither arraigned on a felony complaint before a local criminal court nor notified that his case was being presented to a Grand Jury. [1]


Defendant was arrested at approximately 8:15 p.m. on September 17, 2007, for allegedly dousing complainant's home with a flammable liquid and lighting a match. As a result of this incident, complainant's home was destroyed and she suffered second and third degree burns to 43% of her body. The defendant fled the scene immediately, but was later located, arrested, and admitted to the Staten Island Hospital burn unit for treatment of burns he sustained in the incident. While in the hospital, the defendant underwent surgery, including skin grafts.

On September 19, 2007, a felony complaint was drafted by the District Attorney and signed by the fire marshal who was also the arresting officer in the case. The defendant was not immediately arraigned in a local criminal court on this felony complaint because of his hospitalization. The assigned assistant district attorney communicated regularly with the hospital, but was informed that the defendant did not have medical clearance to be arraigned. In order to avoid releasing the defendant pursuant to CPL 180.80, [2] the ADA submitted the case to the Grand Jury on September 21, 2007. The Grand Jury voted to indict the defendant the same day. The indictment was filed on September 28, 2007. Upon receiving medical clearance, the ADA arraigned the defendant on the indictment in a special hospital arraignment held on October 5, 2007. Defense counsel alleged that defendant was ready and able to be arraigned at any time during his stay in the hospital.

On October 11, 2007, defendant filed the instant motion to dismiss pursuant to CPL ยงยง 190.50, 210.20(1)(c) and 210.35(5), claiming he was not afforded an opportunity to testify before the Grand Jury prior to the filing of the indictment and that there was unnecessary delay in his arraignment on the felony complaint. In deciding this motion, the Court has considered the defendant's motion, the People's answer, and the oral arguments of counsel heard on December 12, 2007. [3]


A motion to dismiss based on the ground that an indictment was obtained in violation of a defendant's right to testify must be made "not more than five days after the defendant has been arraigned upon the indictment" or else the contention is waived (CPL 190.50[5][c]). To implement a statutory time limit that starts to run upon the occurrence of a specified event, courts have applied McKinney's General Construction Law 20 ( see, e.g., People v. Stiles, 70 N.Y.2d 765 [1987]; People v Anderson, 66 N.Y.2d 529 [1985]; People v Burgess, 153 N.Y. 561 [1897]; Sugerman v. Jacobs, 160 A.D. 411 [1914]). Essentially this rule of construction excludes the first day (the day of the specified event), but includes the last day, in calculating the time limit. An allowance is given for weekend days and holidays only if the time limit is a period of two days. In this case, the event that triggered the five-day time limit was the arraignment of the defendant, which occurred on October 5, 2007. Excluding this day and including the fifth day made October 10, 2007 the last possible day for defendant to bring his motion. [4] Defendant's motion is dated October 11, 2007 and is therefore time-barred.

Although some Second Department cases have upheld an extension of the five-day time limit mandated by CPL 190.50(5)(c), these extensions were made by defense counsel prior to the expiration of the five-day period ( People v Backman, 274 A.D.2d 432 [2000]; People v Mason, 176 A.D.2d 356 [1991]). Other Second Department cases did not permit a lower court to extend the five-day period when the motion was made after the time limit had already expired, five days or more after the date of arraignment (People v Duran, 266 A.D.2d 230, 231 [1999], leave to appeal denied, 94 N.Y.2d 822 [1999]; People v. Valle, 198 A.D.2d 459 [1993], appeal ...

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