Opinion
10345/2006.
Decided March 9, 2007.
Edward Purce, Esq. Assistant District Attorney For the People, Shekera Shahid, Esq., For the Defendant.
Defendant moves to dismiss the indictment on the grounds that his statutory right to testify before the Grand Jury was violated. (CPL § 190.50[a]). In deciding this motion, the Court has considered the defendant's motion, the People's answer and the oral arguments of counsel.
ISSUE PRESENTED
The issue of first impression presented here is whether the arraignment of a defendant upon a felony complaint in a local criminal court after an indictment has already been voted and filed against that defendant triggers the defendant's right to testify before the Grand Jury under CPL § 190.50(5)(a). For the reasons set forth below, defendant's motion is denied.
FACTS
The facts of this case present a most unusual situation. Defendant was arrested on November 26, 2006, for allegedly shooting his girlfriend in the left eye and then shooting himself in the head. Defendant and complainant were hospitalized. On December 1, 2006, the People presented the case to a Grand Jury, which voted to indict defendant on that same day. On December 5, 2006, the indictment was filed. On December 14, 2006, defendant was released from the hospital and immediately brought to criminal court to be arraigned on a felony complaint. Apparently no one present at the arraignment was aware that an indictment had been voted and filed against defendant prior to the arraignment, so defendant was released pursuant to CPL § 180.80 for the People's failure to take action on the felony complaint in a timely manner. On that same day, defendant filed a notice of his intent to testify before the Grand Jury under CPL § 190.50. The case was adjourned to January 30, 2007. At that court appearance, defendant was informed that an indictment had, in fact, been filed and the case was transferred to the Supreme Court. On January 31, 2007, defendant was arrested and brought to Supreme Court, where he was arraigned on the indictment. On February 5, 2007, defendant served and filed the instant motion to dismiss pursuant to CPL §§ 210.20(1)(c) and 210.35(4), claiming he was denied the right to testify before the Grand Jury after serving notice of intent to do so.
DISCUSSION
In essence, defendant maintains that the mere fact that he was arraigned in criminal court under a felony complaint triggered a right to testify before the Grand Jury, even though he had already been indicted prior to that arraignment. This Court, however, finds the indictment voted on December 1, 2006, and filed on December 5, 2006, rendered the criminal court arraignment on December 14, 2006, superfluous and unnecessary.
A defendant's right to testify before the Grand Jury is purely statutory. ( See, People v. Mateo, NYLJ 5/15/98, p. 34, col. 1 [1998], for a detailed explanation of the history of a defendant's right to testify before the Grand Jury). Under CPL § 190.50(5)(a), this right to testify accrues only if, prior to the filing of the indictment, the defendant serves written notice of his or her intent to testify upon the district attorney. However, the district attorney is under no obligation to inform a person that a Grand Jury proceeding is pending against him or her "unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding." (CPL § 190.50[a]). The Second Department has made clear that the plain meaning of the statute "compels the conclusion" that absent an arraignment upon a felony complaint, a prosecutor has no duty to inform a defendant that a Grand Jury presentation is underway, even if defendant is hospitalized at the time of such presentation. ( People v. Munoz, 207 AD2d 418, 419, People v. Brooks, 247 AD2d 486; see also, People v. Williams, NYLJ 1/5/99, p. 33, col. 5 [Sup. Ct. Kings Co., 1999]).
These decisions supersede the Supreme Court decision upon which defendant relies, People v. Morgan, NYLJ 12/13/93, p. 28, col. 6 (Sup. Ct. NY Co., 1993).
Here, defendant's right to testify before the Grand Jury never accrued because he did not serve notice of his intent to testify until December 14, 2006. At that point, the underlying indictment had already been voted and filed. The People were under no obligation to inform him of the presentation to the Grand Jury because at the time of such presentation, defendant had not yet been arraigned upon the felony complaint. As in Munoz, Brooks, and Williams, defendant was hospitalized at the time of the presentation of the charges to the Grand Jury. The only difference in this case is that the People erred in arraigning defendant after the indictment was voted and filed and releasing him when there was no need to do so. The fact that defendant was superfluously arraigned does not trigger an additional right to testify before the Grand Jury. In fact, defendant benefitted from these errors.
The conclusory allegation made by defendant that the People intentionally conducted the process in this manner so as to deny defendant his right to testify before the Grand Jury is belied by the fact that defendant concedes he could not communicate until December 2, 2006. The indictment was fully presented and voted on December 1, 2006. Thus, the Court need not consider defendant's argument that even if the People were in compliance with the dictates of the statute, a defendant may nonetheless be afforded a right to testify before the Grand Jury upon a showing of intentional wrongdoing by the People. The Court notes, however, that the People are permitted to proceed by a "silent" indictment without ever informing a defendant of the pending investigation. ( See, CPL § 1.20). In such a situation, the defendant is afforded no statutory right to testify, regardless of the intentions of the People.
CONCLUSION
Accordingly, defendant's motion to dismiss is denied in all respects.
This constitutes the Decision and Order of the Court.