Erie County conviction overturned because of lack of grand jury notice

The Appellate Division of state Supreme Court, Fourth Department, has overturned a criminal conviction in Erie County Court because the defendant was improperly denied his right to testify before the grand jury that indicted him.

The panel dismissed the indictment against Gerald Moss, 53, who was convicted in March 2014 of two counts of fourth-degree criminal possession of stolen property. Moss was sentenced to two to four years in prison and is now on parole.

On March 1, 2013, Moss sent a letter to the Erie County District Attorney demanding his right to testify to the grand jury.

“We conclude that defendant’s letter satisfied the statutory requirements for notifying the People of a request to appear before the grand jury,” the panel wrote in the decision released Friday.

On March 25, 2013, the DA sent a letter to Moss’ attorney telling him that during the week of April 8, 2013, the grand jury would hear testimony in the case. The letter said that, if Moss wanted to testify, he should notify the DA’s office in writing by April 5, 2013. The DA’s letter did not include the time and place of the grand jury presentation.

Because Moss had already sent a letter notifying the DA of his desire to testify, the DA was required to respond with the time and place of the grand jury presentation. Moss was not required to respond to the DA’s letter because he had already sent a letter to the DA saying he wanted to testify.

And even though the prosecutor told Moss’ attorney orally on April 10, 2013, that he would be presenting the case to a grand jury the next day, it still did not satisfy the notice requirement “inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation,” the Fourth Department panel wrote in the decision.