Opinion
289-2006.
Decided February 24, 2006.
HON. THOMAS J. SPOTA, District Attorney, Suffolk County, By: Sona M. Gandhi, Assistant District Attorney Criminal Courts Building Riverhead, New York.
Peter C. Stein, Esq., Hauppauge, NY, Attorney for Defendant.
Defendant has moved through counsel, pursuant to CPL § 190.50, to dismiss the above-captioned indictment on the grounds he was not afforded an opportunity to testify before the Grand Jury, due to the People's failure to provide proper notice. The People have submitted an affirmation in opposition.
On January 3, 2006, defendant was arraigned in District Court on a felony complaint charging robbery, first degree. The minutes of arraignment reflect that bail was set in the amount of $5,000.00 cash or $10,000.00 bond, and that the matter was adjourned until March 7, 2006. They further reflect that defense counsel served a notice pursuant to CPL § 190.50 indicating that his client intended to exercise his right to testify before the Grand Jury. Defense counsel also indicated that although he was waiving his client's right to a public reading of the charge, and to his right to a speedy trial, pursuant to CPL § 30.30 (up until March 7, 2006), he stated that ". . . [h]e doesn't waive any of his rights and enters a plea of not guilty and demands a jury trial."
The record reflects that the prosecutor acknowledged receipt of defendant's notice pursuant to CPL 190.50.
The People and defense counsel acknowledge that notice pursuant to CPL § 190.50, informing defense counsel that a Grand Jury was going to hear evidence against his client, was served by the People and received by defense counsel. However, both sides also agree, the notice involved an unrelated docket number, not the robbery charge. Both sides further acknowledged that conversations took place between the parties, and that defense counsel indicated that defendant would not be testifying in the unrelated matter.
Defendant maintains he was never informed that the Grand Jury was to hear evidence regarding the robbery. The People maintain that because the language in the notice states that the Grand Jury will hear evidence on the offense charged in the felony complaint ". . . served upon you," i.e., the paperwork in reference to the burglary, ". . . together with other offenses not set forth therein . . .," that the evidence regarding this robbery charge was also contemplated. They also maintain that defense counsel never indicated during their several conversations that his client wished to testify in reference to either charge.
CPL Section 190.50(5)(a) requires that where a defendant is arraigned on an undisposed felony complaint charging an offense that is a subject of a pending Grand Jury proceeding, the People must notify the defendant or his attorney of the Grand Jury proceeding and give defendant a reasonable amount of time to appear (see, People v. Smith, 87 NY2d 715, 719-21). The notice must be reasonably calculated to apprize the defendant of the Grand Jury proceeding so as to permit him to exercise the right to testify (see, People v. Abdullah, 189 AD2d 769; see also, People v. Jordan, 153 AD2d 263, 266).
The notice here failed to adequately apprise defendant that the proceeding in the Grand Jury involved the robbery charge. The indictment must be dismissed, with leave to re-present (see, CPL 210.20).
The foregoing constitutes the decision and order of the Court.