The People v. Perry C. Griggs

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 87
The People &c.,
Respondent,
v.
Perry C. Griggs,
Appellant.

Alan Williams, for appellant.
Michael J. Hillery, for respondent.

GARCIA, J.:
We are asked on this appeal chiefly to determine whether
errors made by the prosecution before the Grand Jury require
dismissal of the indictment and whether defense counsel provided
ineffective assistance in failing to timely object to these

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errors. We agree with the Appellate Division in the first
instance that defendant's challenges are not preserved. With
respect to the ineffective assistance claim, we also agree with
the Appellate Division's determination that counsel was not
ineffective. Defendant's remaining contentions regarding the
legal sufficiency of the evidence and the fairness of his trial
are partially unpreserved and otherwise meritless.
Defendant was charged with first degree robbery after he
displayed a firearm during a dispute with a taxi driver and took
$30 from the driver. Defendant testified before the Grand Jury,
where he was represented by counsel and shackled. The victim
also testified. 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]. The requested witness had provided a sworn
statement to the police on June 28, 2010 stating that she got out
of the taxi at the beginning of the dispute and did not see
anything afterwards. 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.

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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.
During a court appearance later that month, 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." Later
in that same proceeding, defendant raised his desire to proceed
pro se, and the court instead appointed new defense counsel with
whom defendant already had a relationship.
Two months later, at defendant's urging and after a full
voir dire of defendant, the court granted the request to proceed
pro se, relieved new counsel, and appointed that same counsel to
advise defendant for the remainder of the proceedings. 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 unanimously affirmed the conviction
and sentence, finding a majority of defendant's challenges
unpreserved. The Appellate Division also noted that "[a]lthough
we agree with defendant that he should not have been shackled
when he testified before the grand jury, we conclude that
reversal on that basis is not warranted. As the People correctly

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contend, the prosecutor's cautionary instructions to the grand
jury were sufficient to dispel any potential prejudice to
defendant" (117 AD3d 1523 [4th Dept 2014]). The Appellate
Division also noted that the failure to inform the Grand Jury of
the requested witness, while unpreserved, also had no possibility
of prejudicing defendant because "the witness did not observe the
criminal transaction at issue" (id.). A Judge of this Court
granted leave to appeal (24 NY3d 1120 [2015]) and we affirm.
On appeal, 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.
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

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proceedings error (see e.g. 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]).
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.
Not surprisingly, defendant next 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 "[s]o

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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]). We
have previously determined that counsel's representation was
effective even where defense counsel failed "to show up at the
designated time to attend upon defendant's opportunity to testify
before the Grand Jury" and arrived at the Grand Jury after an
indictment had been voted (People v Wiggins, 89 NY2d 872, 873-74
[1996]).
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 (see People v Petgen, 55 NY2d 529, 535 [1982]). For

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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.
Defendant's challenges to the legal sufficiency of the
evidence are partially unpreserved1 and otherwise meritless in
light of the evidence upon which the jury could have based its
decision. Finally, defendant's argument that he was deprived of
a fair trial because of "[a] pattern of severe prosecutorial
misconduct" is unpreserved (People v Rossi, 24 NY3d 968, 970
[2014]).
Accordingly, the Appellate Division order should be
affirmed.

1
Defendant's challenges to the sufficiency of the evidence
that he stole property and consciously displayed a gun are
unpreserved.

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People v. Perry Griggs
No. 87

RIVERA, J.(concurring):
I agree with the majority that the challenges are
unpreserved and on the facts of this case defendant was not
denied effective assistance of counsel. To the extent the
majority would shift blame for counsel's failure to defendant for
seeking to proceed pro se, I disagree that defendant acted in
such an obstructionist manner as to undermine his defense and his
claims regarding his counsel's representation. However,
counsel's inactions do not constitute ineffectiveness warranting
reversal, even for failing to challenge defendant's appearance in
shackles before the Grand Jury. The prosecutor's instructions
concerning the shackling were less than ideal but minimally
sufficient to avoid prejudice to defendant.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore
and Judges Pigott, Abdus-Salaam and Stein concur; Judge Rivera
concurs in a separate concurring opinion. Judge Fahey took no
part.

Decided June 14, 2016

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