Opinion
01965/09.
Decided July 7, 2009.
HON. ROBERT M. MORGENTHAU,, District Attorney, New York County, New York, NY, Elise Roecker, Esq., of Counsel, for the People.
BRUCE H. KLANG, ESQ., New York, NY, for the Defendant.
Defendant moves for an order dismissing the indictment on the ground that the prosecutor violated his rights by not informing the grand jury of his request to have a witness testify before the grand jury. Specifically, defendant contends that the prosecution failed to advise the grand jury of his oral request, pursuant to CPL § 190.50 (6), to have it hear the testimony of Ms. Karissa Quinones, who maintains that she was with defendant on April 19, 2009, when both of them were arrested. Defendant alleges that Ms. Quinones possessed relevant and probative information and as a result of the People's failure to advise the grand jury of his request, the integrity of the grand jury proceeding was impaired and that the indictment must be dismissed pursuant to CPL §§ 210.20 and 210.35 (5).
The People have submitted an affirmation in opposition to defendant's motion and argue that because defendant testified in the grand jury, he could have asked the grand jury to hear from Ms. Quinones during his own appearance. The People do not dispute that they were notified of defendant's request with respect to Ms. Quinones nor do they dispute that they refused to transmit the request to the grand jury.
The People rely upon People v Butterfield, 267 AD2d 870 (3rd Dept 1999) in support of their position. The issue in Butterfield related to the timeliness of a defendant's request pursuant to CPL § 190.50 (6) that the grand jury hear the testimony of a defense witness. Defendant, by letter, notified the district attorney and requested that the grand jury hear the testimony of defendant's brother. The letter was delivered late in the afternoon on the day before the grand jury heard evidence and voted. The district attorney did not notify the grand jury of defendant's request. Defendant moved to dismiss the indictment as defective. The County Court denied defendant's motion, holding that his request should have been made "a reasonable time" in advance of the presentation. The Third Department reversed defendant's conviction and dismissed the indictment, holding that the indictment was defective within the meaning of CPL § 210.35 (5). The court's statement, in dictum, that a defendant "may make such a request during his own testimony," 267 AD2d at 874, can hardly be read to shift the obligation to communicate the request to the grand jury from the People to defendant.
In the instant case, the People cite CPL § 190.50 (6) and argue that, "the statute does not expressly require that the People place defendant's request before the Grand Jury," and that defendant was on notice that he needed to notify the grand jury himself, since the People never indicated that they would ask the grand jury to hear from Ms. Quinones. This court has found no authority for the People's position and finds no merit to the People's argument.
The People contend that the cases cited by defendant in support of his motion, People v Andino, 183 Misc 2d 290 (Sup Ct Bronx Co 2000) and People v Ali , 19 Misc 3d 672 (Sup Ct Queens Co 2008) are inapplicable because, "in both situations . . . defendant did not testify before the Grand Jury and was completely reliant upon the People to present his request to the Grand Jury."
In Ali, supra, the court held that the prosecutor had a duty to communicate to a grand jury a defendant's request that specific witnesses be allowed to testify, and then allow the grand jury to use its discretion in deciding whether hear from the witnesses. There is no indication in the opinion as to whether defendant testified in the grand jury or that the result turned on that fact.
In Andino, supra, the court held that the People's failure to communicate defendant's request to have witnesses appear on her behalf before the grand jury violated the plain language of the statute and that the failure to conform with the requirements of CPL § 190.50 (6) impaired the integrity of the proceedings. Although defendant withdrew her own notice to testify and the proferred witnesses did not appear when defense counsel had indicated they would, neither fact relieved the prosecutor of the obligation to inform the grand jury of the request to hear defendant's witness. The holding in Andino is clear: the People's failure to alert the grand jury of a defendant's request that witnesses testify before the grand jury rendered that grand jury proceeding defective. See also People v Montagnino, 171 Misc 2d 626 (1997); People v Fecunda, Sup Ct Kings Ct, NYLJ, 12/28/90, p 25 col 6; People v Urbanik, Sup Ct, Queens Co, NYLJ, 4/10/90, p 29 col 3; People v Lambriola, Sup Ct, New York Co, NYLJ 7/7/98, p 29 col 1. Moreover, a defendant's inability to secure a witness' presence for grand jury testimony on a particular date does not relieve the prosecutor of his or her obligation to notify the grand jury of defendant's request to call that witness. See Andino, supra. Whether the defendant testifies is of no significance.
Pursuant to CPL §§ 190.50 (2) and (3), the People or the grand jury may call as a witness any person believed by the district attorney or the grand jury to possess relevant information or knowledge. A defendant has no right to call a witness in a grand jury proceeding [CPL § 190.50 (1)], except he "may request, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called. . . ." CPL § 190.50 (6). The district attorney has a duty to act upon the grand jury's desire to hear from witnesses other than those the prosecutor has chosen to present, and the statute requires the prosecutor issue and serve a subpoena upon those witnesses. CPL § 190.50 (3). See McKinney's CPL § 190.50, Preiser Practice commentaries.
As the legal advisor to the grand jury, the prosecutor acts as a quasi-judicial public officer and has an obligation of fair dealing; this duty supercedes the concern for gaining a conviction. See Berger v United States, 295 US 78 (1935); People v Lancaster, 69 NY2d 20 (1986); People v Pelchat, 62 NY2d 97 (1984). In light of the People's acknowledgment that defendant's request was not communicated to the grand jury, I find that the integrity of the grand jury proceedings was impaired. Accordingly, the indictment is dismissed with leave to the People to resubmit.
This constitutes the decision and order of the court.