Opinion
No. 201 SSM 32.
Decided September 16, 2008.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 15, 2008. The Appellate Division affirmed an order of the Supreme Court, New York County (Michael J. Obus, J.), which had granted defendant's motion to dismiss the indictment, with leave to represent.
Defendant, who was charged with perjury, experienced two changes of counsel over the two-week period between when he notified the People that he intended to appear and testify before the grand jury, and the start of the eight-day Passover holiday, during which time he was unavailable to testify due to his religious beliefs. The People refused defendant's offer to testify on the day after Passover, the last day of the grand jury term, presented the case without defendant's testimony, and the grand jury voted to indict. Supreme Court granted defendant's motion to dismiss the indictment, with leave to represent, on the grounds that the People violated his right to testify before the grand jury.
The Appellate Division concluded that the indictment was correctly dismissed with leave to represent; and that, given the narrow time frame wherein defendant had to obtain new counsel, and the onset of the eight-day religious holiday, the People did not offer defendant a reasonable or meaningful opportunity to testify before the grand jury.
People v Shemesh, 51 AD3d 239, affirmed.
Robert M. Morgenthau, District Attorney, New York City ( Frank Glaser and Mark Dwyer of counsel), for appellant.
Arnold J. Levine, New York City, for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed. There is record support for the finding below that the District Attorney failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury.