Court of Appeals Leave Grants
Leave Granted for Grand Jury & Sentencing Issues
September 8, 2014
On December 13, 2013, the Appellate Division affirmed Mr. Small’s conviction. On August 8, 2014, Judge Smith granted leave. The appeal raises the following issues:
1. Whether, by failing to bring Mr. Small to criminal court to be arraigned on the charges in the felony complaint, as directed by the arrest warrant, the People (a) unlawfully prevented his arraignment, thwarting the grand jury notice requirement, and making the resulting indictment invalid, and (b) made the indictment jurisdictionally defective, thus making the People incapable of readiness for trial and requiring dismissal of the indictment.
2. A habeas corpus decision found that Mr. Small’s 1992 parole violation charge had arisen from a “breakdown in communications,” and that the parole commissioner had “evidently ignored” both the parole hearing officer’s finding and the underlying testimony “for no valid reason” in incarcerating Mr. Small. Nonetheless, the period of incarceration Mr. Small served for this violation was counted by the trial court in adjudicating Mr. Small a second violent felony offender.
The Court of Appeals will consider whether this 1992 period of incarceration should have been excluded when determining if Mr. Small had a prior violent felony within the past 10 years. Or, if, instead, the habeas decision was a finding that Mr. Small was “imprisoned without reason,” under People v. Dozier, 78 N.Y.2d 242 (1991), and could not be used for predicate purposes.
William Loeb represents Mr. Small.