Because I believe that the defendant, Simmons, was effectively without counsel in this case from September 27, 2004, when the People served notice under CPL 170.20 of their intent to submit the case to the grand jury, until November 12, 2004, when felony qualified counsel was assigned, I must respectfully dissent.
It is uncontested that at the time that this defendant was arraigned on the misdemeanor charge of criminal possession of a controlled substance in the seventh degree, he was assigned counsel who was not on the felony panel. At the next court appearance, the People served the requisite 170.20 notice. The defendant was indicted on October 5, 2004. On October 10, the defendant moved pro se to dismiss the indictment under CPL *138190.50 as he had not been afforded the opportunity to testify before the grand jury.
The defendant was arraigned on the indictment on November 12 and for the first time, an attorney from the felony panel appeared on his behalf. The defendant’s prior counsel also appeared and asked that he be relieved. The record is devoid of any reference to contact between the defendant and any attorney between arraignment on the misdemeanor charge until after he was indicted. The court below denied the defendant’s pro se motion on the grounds that the defendant’s initial attorney failed to make his client available to the grand jury. The majority agreed with that view of the record, and hold that there is no right to be represented by “felony qualified” counsel.
I believe that this misstates the deficiency in this case. The simple fact of the matter is that it is uncontroverted that there is no evidence of record of any contact between the defendant and the defendant’s original counsel from his original arraignment to the attorney’s substitution postindictment. In my view, the defendant was simply abandoned by his attorney until new counsel was appointed from the felony panel. Thus, it is not a question of whether an attorney from the misdemeanor panel was either qualified to or effective in representing the defendant, but rather whether the defendant was represented at all prior to the grand jury voting to indict the defendant. Because I believe that the defendant simply was not represented, and had he been so represented he would have availed himself of the opportunity to testify before the grand jury, I would reverse the conviction and grant the defendant’s motion to dismiss the indictment under CPL 190.50 (5) (c).
Mazzarelli, J.E, Williams and Gonzalez, JJ., concur with Kavanagh, J.; Catterson, J., dissents as to defendant Simmons in a separate opinion.
Judgments, Supreme Court, New York County, rendered March 21, 2005, affirmed.