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Decided on October 29, 2009
Supreme Court, Bronx County

3288/09

APPEARANCES:
For the People:
Michele L. Melnick, Esq.
Office of the Bronx District Attorney
Narcotics Bureau
198 East 161 Street

(718 590-2000
For the Defendant:
David Craig Berlin, Esq.
888 & th Avnue, Suite 4500
New York, NY 10106
(212) 247-4650
Robert K. Holdman, J.
Defendant moves to dismiss the indictment on the ground that he was not afforded an opportunity to testify before the Grand Jury. In the alternative, defense counsel requests that Defendant be granted new counsel on the ground that he has been denied effective assistance of counsel, and be given an opportunity to exercise his right to testify before the Grand Jury.
The Court points out preliminarily that the second paragraph of the People's Affirmation in Opposition to Defendant's motion to dismiss pursuant to CPL 190.50 erroneously states that the affirmation is submitted "in response to defense counsel's notice of motion requesting suppression of defendant's statements, suppression of any identification of the defendant, preclusion of additional statements made by defendant, and compelling the People to provide defendant with information regarding defendant's prior charged and uncharged crimes the People intend to introduce at trial."
All notices pursuant to CPL 190.50 were properly served in this case. At the calendar appearance on August 19, 2009, defense counsel and the People agreed that Defendant would testify before the Grand Jury on August 20, 2009, at 2:00 p.m. In addition, defense counsel informed the People that Defendant had a witness who intended to testify on Defendant's behalf.
Defendant his witness were present outside the reception area at the Grand Jury panels prior to the agreed-upon time of 2:00 p.m. on August 20. Also present in the reception area was an attorney from The Legal Aid Society, who according to defense counsel, observed Defendant and his witness at the Grand Jury reception area prior to 2:00 p.m. on August 20. Defense counsel did not arrive until approximately 2:20 p.m.
Upon his arrival, defense counsel checked in with the court officer sitting at the desk, who called for the presenting ADA. She came out several minutes later and told defense counsel that she had already voted the case and the Grand Jury had voted a true bill. She informed defense counsel that a quorum was present in the C Panel of the Grand Jury beginning at 2:15 p.m. and that, having looked in the waiting room at 2:20 p.m., and not having seen defense counsel, she proceeded to vote the case.
According to defense counsel, the prosecutor would not grant defense counsel's request to allow Defendant and his witness to testify despite the fact that the Grand Jury had already voted [*2]to indict.
People v. Evans, 79 NY2d 407 (1992) held that "[b]y providing timely notice reasonably prior to Grand Jury presentment and vote, defendants establish their statutory right to testify before a vote is taken, assuming, of course, that any failure to afford these individuals a prevote appearance is not attributable to defendants themselves." In this case, timely notice had been provided and Defendant made himself available to testify by appearing at the scheduled time. Thus, his failure to testify is not attributable to him. "[T]he opportunity to testify prior to any Grand Jury vote is qualitatively different' from and more advantageous than the opportunity to testify at a reopened presentment after the Grand Jury had committed itself to a vote based on the prosecution's ex parte presentment of evidence." Id.. at 414. However, as noted in Evans, "the obligation under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed (see, e.g., People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507), is an added window given to defendants. Here, Defendant expressed his willingness to testify even though the Grand Jury had already voted to indict, but he was not given that opportunity.
The prosecutor stated that defendants are usually expected to testify by 10:00 a.m., but defense counsel was informed "that the people would make an exception for Defendant," and that he would have to be in the waiting room with Defendant at 2:00 p.m. sharp. The Court notes that the District Attorney's Office and defense counsel agreed upon a time for Defendant to testify. While the District Attorney's practice of scheduling testimony from defendants in the morning may promote efficiency, there is no legal requirement as to the time of day defendants or their witnesses must
On August 20, the prosecutor came out to the waiting room at 2:15 p.m. and was informed by the court officer that no one had checked in with him. The prosecutor states that she observed the Legal Aid attorney in the waiting room, and that she observed two gentlemen at the end of a hallway near the witness elevators, but the court officer did not know the identify of the gentlemen. At 2:18 p.m. the prosecutor again went to the waiting room, but the defense attorney had not checked in or left a message. At 2:20 p.m., the prosecutor checked her office voicemail but had not received any message from the defense attorney. She thereupon entered the Grand Jury chamber and voted the case. Upon learning that the defense attorney was in the waiting room, she told him she would make an effort to accommodate the lateness of the hour, however, the Grand Jury was very busy and it would not be possible to vacate the vote.
Criminal Procedure Law

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New York Law