Opinion
2782/2009.
Decided March 4, 2010.
The defendant is represented by Lori Golombek, Esq. The People are represented by Assistant District Attorney Lauren Parson of the Queens District Attorney's Office.
The defendant, Victor Lliviganay, has filed a motion with this Court, seeking dismissal of the above-captioned indictment, pursuant to CPL 190.50, for failure to provide the defendant an opportunity to testify before the Grand Jury. The People oppose the defendant's application in its entirety.
This indictment arose out of an incident that allegedly took place between June 1, 2008 and June 30, 2008, inside of 132-53 Metropolitan Avenue, Queens. The defendant was indicted for sexual abuse in the first degree (PL 130.65-3) and endangering the welfare of a child (PL 260.10-1).
Court records reflect that the defendant was arrested on May 6, 2009. The defendant was arraigned in Criminal Court on May 8, 2009, on the felony complainant. Notices were served, including a notice by the People of their intent to present this case to a Grand Jury. Though the markings on the court file reflect that "cross grand jury" notice was served (checked off), the People maintain that no written notice was served upon the District Attorney of defendant's desire to testify before the Grand Jury. This matter was adjourned to May 18, 2009, to Part AP-N, for conference.
Court records reflect that this matter was adjourned two more times in Part AP-N for conference and then adjourned several times for grand jury action. On November 23, 2009, the defendant's attorney was notified of the defendant's grand jury proceeding, scheduled for December 2, 2009, at 2PM. Defendant's attorney admits that she received such notice. An indictment was voted, and subsequently filed on December 10, 2009. On January 13, 2010, the defendant was arraigned in Supreme Court, Part TAP B, on these charges.
In this motion, the defendant's attorney is seeking dismissal of the above-captioned indictment, claiming the defendant wishes to testify in the grand jury in his own behalf. The defendant's attorney asserts that after receiving notification of the grand jury proceeding, she attempted to reach him by telephone but his phone was not in working order. She sent him a letter regarding the Grand Jury proceeding, but she did not receive a response. She was unable to reach him prior to the Grand Jury presentation, learning only by his next Court date, that the defendant had changed his residence and had a new telephone number.
To preserve his right to testify on his own behalf before the Grand Jury, the defendant must serve written notice upon the District Attorney making such request. Specifically, ". . . [A] person has a right to be a witness in a grand jury proceeding. . . .(a) When a criminal charge against a person is being or about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment . . ., he serves upon the district attorney . . . written notice making such request and stating an address to which communications may be sent . . .". CPL 190.50 (5)(a). However, ". . . since he failed to comply with the written notice request of CPL 190.50 (5)(a), his right to testify never accrued . . .". People v Green, 187 AD2d 528 (2d Dept (1992). Anything less, such as a defense counsel's "oral notice" that a defendant "may wish to testify" is insufficient. See, Green, supra, see also People v Harris, 150 AD2d 723 (2d Dept 1989).
Even assuming a lack of written notice here, the People notified the defendant (by sending written notice to his attorney) of the date, time and place of the defendant's grand jury proceedings. This notice allowed nine (9) days for the defendant to express his desire to testify, and appear. Neither the People nor his own attorney heard from the defendant, and he, in fact, did not appear. Thus, notice was reasonable and adequate under the law. See CPL 190.50 (5)(a). See also, eg, People v Pugh, 207 AD2d 503 (2d Dept 1994) (9 days reasonable notice). See also, People v Ferrara, 99 AD2d 257 (2d Dept 1984) (6 day reasonable notice). People v Ballard , 13 AD3d 670 (3rd Dept 2004) (5 days reasonable notice).
Here, the People offered the defendant an opportunity to testify, in spite of a lack of written cross grand jury notice, and a reasonable time to appear. It is clear that the notice given here was ". . . reasonably calculated to apprise the defendant of the Grand Jury proceeding". People v Quinones, 280 AD2d 559 (2d Dept 2001). "That defense counsel could not contact [her] client did not render the People's notice unreasonable or improper . . . and his failure to appear should not be excused when it was of [his] own creation'". Quinones, supra; See also, People v Choi, 210 AD2d 495 (2d Dept 1994). The defendant's failure to remain in communication with his lawyer is not the fault of the District Attorney.
In sum, the defendant's motion to dismiss the above-captioned indictment for failure of the People to provide the defendant with a reasonable opportunity to testify before the grand jury is denied. The foregoing constitutes the order, opinion and decision of this court.