Opinion
2019–06821 Ind. No. 2198/18
03-23-2022
The PEOPLE, etc., appellant, v. Terell JORDAN, respondent.
Melinda Katz, District Attorney, Kew Gardens, NY (Robert J. Masters, John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Edward D. Saslaw, and Sharon Brodt of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Robert J. Masters, John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Edward D. Saslaw, and Sharon Brodt of counsel), for appellant.
BETSY BARROS, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Queens County (Toko Serita, J.), dated April 25, 2019. The order, upon renewal, granted that branch of the defendant's prior motion which was pursuant to CPL 190.50(5) to dismiss the indictment and dismissed the indictment, with leave to re-present the matter to the grand jury.
ORDERED that the order is affirmed.
On February 22, 2018, while being arraigned on a felony complaint giving rise to the indictment at issue, the defendant was served by the People with notice pursuant to CPL 190.50 informing him of his right to testify before the grand jury. The defendant served a cross-notice of his intent to testify. On October 1, 2018, evidence was presented to the grand jury, but the defendant failed to appear. The grand jury voted on the indictment and returned a bill against the defendant on various charges.
The defendant thereafter moved, inter alia, to dismiss the indictment as obtained in violation of CPL 190.50(5)(a). The Supreme Court denied that branch of his motion. Subsequently, the defendant moved, inter alia, for leave to renew that branch of his prior motion which was pursuant to CPL 190.50(5) to dismiss the indictment. Upon renewal, the court granted that branch of the defendant's prior motion which was to dismiss the indictment, and dismissed the indictment, with leave to re-present the matter to the grand jury. The People appeal.
CPL 190.50(5) provides that a defendant has a right to appear and testify before a grand jury if he or she serves written notice of his or her intent to do so upon the District Attorney before an indictment is filed. "[T]he opportunity to testify prior to any [g]rand [j]ury vote is qualitatively different from and more advantageous than the opportunity to testify ... after the [g]rand [j]ury ha[s] committed itself to a vote based on the prosecution's ex parte presentment of evidence" ( People v. Evans, 79 N.Y.2d 407, 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [internal quotation marks omitted]; see People v. Ellison, 119 A.D.3d 602, 603, 988 N.Y.S.2d 691 ). Thus, a defendant who provides timely notice "prior to the prosecution's presentment of evidence and prior to the [g]rand [j]ury vote on an indictment [is] entitled to testify before the vote" ( People v. Evans, 79 N.Y.2d at 413, 583 N.Y.S.2d 358, 592 N.E.2d 1362 ).
Where, as here, the defendant has been arraigned upon an undisposed felony complaint, the People "must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his [or her] right to appear as a witness therein" ( CPL 190.50[5][a] ; see People v. Smith, 87 N.Y.2d 715, 720, 642 N.Y.S.2d 568, 665 N.E.2d 138 ). Such notice "must be reasonably calculated to apprise the defendant of the [g]rand [j]ury proceeding [and] permit him [or her] to exercise his [or her] right to testify" ( People v. Wise, 236 A.D.2d 739, 740–741, 654 N.Y.S.2d 210 [internal quotation marks omitted]).
Under the particular circumstances of this case, upon renewal, the Supreme Court properly granted that branch of the defendant's prior motion which was to dismiss the indictment, and dismissed the indictment, with leave to re-present the matter to the grand jury (see People v. Ellison, 119 A.D.3d at 603, 988 N.Y.S.2d 691 ; People v. Ruffino, 72 A.D.3d 1353, 1355, 898 N.Y.S.2d 731 ). The People's purported notification consisted of calling an attorney, whom the People knew refused representation of the defendant (see People v. Ruffino, 72 A.D.3d at 1355, 898 N.Y.S.2d 731 ). Further, the People dispatched a detective to an address in Valley Stream, and the detective left a copy of the CPL 190.50 notice in the "door jam" of that residence. In an affidavit in support of his motion for leave to renew, the defendant averred that he did not reside thereat and was never notified of the grand jury proceeding to permit him to exercise his right to testify.
In addition, it appears that, during certain relevant periods of time preceding the grand jury presentation, the defendant was not represented by counsel and thus, did not have an opportunity to adequately confer with counsel and make an informed decision as to whether to appear before the grand jury (see People v. Chappelle, 121 A.D.3d 1166, 1168, 994 N.Y.S.2d 435 ; cf. People v. Sawyer, 274 A.D.2d 603, 606, 711 N.Y.S.2d 45, affd 96 N.Y.2d 815, 816–817, 727 N.Y.S.2d 381, 751 N.E.2d 460 ).
The People's remaining contentions are without merit.
BARROS, J.P., RIVERA, MALTESE and FORD, JJ., concur.