Opinion
23547
April 15, 2003.
Legal Aid Society (Michelle A.K. Smith of counsel), for defendant.
Robert M. Morgenthau, District Attorney (Terri Goldstone of counsel), for plaintiff.
MOTION TO DISMISS
The defendant moves to dismiss the indictment on the ground that he was denied his right to testify before the Grand Jury as provided by C.P.L. § 190.50.
Defendant's motion to dismiss the indictment on the above ground is denied because he did not provide the People with the required written notice which the People did not waive.
FACTS
The defendant was arraigned on the felony complaint in the presence of counsel on October 3, 2002. The People's affirmation asserts without contradiction by the defense that the defense never served written notice of defendant's intention to testify before the grand jury. The People's affirmation also asserts without contradiction by the defense that the defendant was served at arraignment with written notice that the case would be presented to the grand jury on October 8, 2002 at 10 a.m. The arraignment minutes reflect that when the prosecutor thereafter asked, "If the case is presented to the grand jury, will the defendant testify?" defense counsel responded, "Yes, he will."
LEGAL ANALYSIS
C.P.L. § 190.50(5)(a) provides that a person against whom a criminal charge is submitted to a grand jury has a right to appear before the grand jury as a witness in his or her own behalf if that person, prior to the filing of any indictment, first provides the District Attorney with a written notice making such request.
This is not a case where the prosecutor explicitly waived written notice or did so by ambiguous conduct (see People v. Ocasio, 160 Misc.2d 422, where, after serving written notice at arraignment, the prosecutor asked, "Will defendant testify?" and defense counsel responded, "Yes, he will." The prosecutor then responded that the defendant could testify at a specific time and date, and the case was adjourned to that same date. The court held that under the latter circumstances the People waived written notice by unconditionally informing defendant after he served oral notice that he could testify at a specific time and date). Here, unlike in People v. Ocasio, 160 Misc.2d 422, supra, the prosecutor did not respond to defendant's oral statement of his intention to testify. Moreover, prior to defendant's oral statement, the prosecutor had already given written notice requiring the defendant to give reciprocal written notice of any intention to testify before such an appearance would be arranged on the next adjourn date. Here, there was no unconditional, unequivocal response by the prosecutor accepting defendant's oral declaration that he would testify (see People v. Saldana, 161 A.D.2d 441 (First Dept], lv denied 76 N.Y.2d 944 where written notice by defendant was required even though prosecutor stated he would note defendant's oral request to testify).
Similarly, the facts in this case are inopposite to those in People v. Bundy, 186 A.D.2d 357 [First Dept. 1992]; People v. Young, 138 A.D.2d 764 [Second Dept. 1988]; and People v. Gini, 72 A.D.2d 752 [Second Dept. 1979], all of which were relied upon by People v. Ocasio, 160 Misc.2d 422, supra. In People v. Bundy, 186 A.D.2d 357, supra, defense counsel's alleged failure to secure defendant's right to testify before the Grand Jury by failing to prepare the necessary paperwork or appear with defendant was held not alone sufficient to demonstrate ineffective assistance of counsel. The prosecutor attempted to accommodate defendant by providing an opportunity for defendant to appear before the Grand Jury despite the absence of any written demand. There was never any claim by the People, unlike here, that they did not waive the requirement of written notice. In People v. Young, 138 A.D.2d 764, supra, the prosecutor specifically agreed to defendant's oral request to testify which was made for the first time after the case was presented but prior to filing of the indictment (accord People v. Rivers, 166 Misc.2d 98). Finally, inPeople v. Gini, 72 A.D.2d 752, supra, it was held that defendant was improperly denied the right to testify where defense counsel gave oral notice followed by promptly filed written notice. The prosecutor hastily presented the case and filed an indictment the next day before written notice could be received and defendant testify.
The legislative history of C.P.L. § 190.50(5) demonstrates that a person secures the right to testify before the grand jury by giving timely notice (see People v. Evans, 79 N.Y.2d 407, 413). The statute requires written notice which requirement is strictly enforced (see People v. Blue, 269 A.D.2d 232 (First Dept. A.D.) lv denied 95 N.Y.2d 793; People v. Rivera, 246 A.D.2d 443 (N.Y.A.D. First Dept.) app denied 91 N.Y.2d 1012;People v. Smith, 197 A.D.2d 411 (N.Y.A.D. First Dept.) where it was held that oral statement at arraignment that defendant "wished to testify before the grand jury" was not sufficient notice to effectuate defendant's right under C.P.L. § 190.50(5)(a) to testify because the notice was not written).
The written notice requirement in C.P.L. § 190.50(5)(a) serves a salutary purpose. It prevents gamesmanship by and or confusion between the parties in situations such as here where the defendant was arraigned with two co-defendants, and the prosecutor who presented the case is not the same prosecutor who appeared at the arraignment or subsequent calendar call adjournments prior to obtaining the indictment. The requirement of written notice is based upon "the strong public policy to further orderly trial procedure and preserve scarce trial resources" and should be strictly enforced (see People v. Lawrence, 64 N.Y.2d 200, 207; see also People v. Jennings, 69 N.Y.2d 103, 113). Here, the People had the right to expect that written grand jury notice would be served pursuant to the dictates of the relevant statute (see People v. Green, 187 A.D.2d 528, lv denied 81 N.Y.2d 840, where it was held that the prosecutor's response that the People would contact defense counsel did not relieve defendant from his obligation to file written notice after defendant first gave oral notice).
Moreover, even if it could be argued that the People waived written notice, the defendant was still provided with a reasonable opportunity to testify. The People's affirmation notes without contradiction that the case was presented on October 8. The written notice served on the defendant at arraignment on October 3 indicated that defendant could testify on October 8 at 10:00 a.m. after providing reciprocal written notice (see prosecutor's affirmation, ex. #1). Defense counsel, despite the latter notice, participated in calling the case in the calendar part on October 8 and adjourning it to October 24 without ever expressing any desire by defendant to testify, or requesting a second call, or contacting the grand jury assistant or appearing before the grand jury as previously notified in the written notice. (see transcript, October 8, 2002). The defense affirmation reveals that defense counsel did nothing to contact the assigned prosecutor until on or after October 24 when defense counsel left a telephone message that defendant will testify. The face of the indictment notes that by that date it had already been voted and signed on October 18. Despite the absence of any subsequent response from the prosecutor, defense counsel took no further action until speaking to the prosecutor on November 7 by which time the indictment was already filed. (see defense affirmation, pg. 5).
Any failure of the defendant to appear before the grand jury, under the above circumstances, cannot be blamed on the People. Defendant was accorded more than a reasonable opportunity to testify, and the prosecution did not act precipitously in presenting the case to the grand jury. (see People v. Washington, 284 A.D.2d 220, lv denied 96 N.Y.2d 925;People v. Clark, 267 A.D.2d 4, lv denied 94 N.Y.2d 946; People v. Savareese, 258 A.D.2d 484, lv denied 93 N.Y.2d 978).
The motion to dismiss the indictment is, therefore, denied.