The defendant has filed a motion before this Court seeking dismissal of the indictment on the ground that he was not afforded the opportunity to testify at the Grand Jury.

On January 2, 2007 the defendant was arraigned in Rochester City Court on the charge of robbery in the first degree. While not represented at the time by counsel, the prosecutor nevertheless tendered written notice to the defendant informing him that the case would be presented to the Grand Jury by January 4, 2007, at 1:30, and that the defendant or defense counsel "must notify the District Attorney in writing of defendant's intend to appear [before the Grand Jury] by 9:00 a.m. on 1/4/07." The matter proceeded before the Grand Jury on January 4, 2007, and the defendant and his present counsel on January 5, 2007 were informed via certification that the Grand Jury had billed an indictment against the defendant.

On January 5, 2007 and January 11, 2007 defense counsel communicated verbally the defendant's intent to appear before the Grand Jury. However, these requests to testify can best be characterized as "equivocal" in that they communicated the notion that the defendant "might" or "may" wish to testify. It was not until January 12, 2007, that a letter was faxed to the District Attorney's Office definitively indicating that the defendant wished to testify before the Grand Jury. However, the record appears to reflect that the defendant's indictment was included in the rising on January 12, 2007, and filed that same day.

Initially the Court notes that CPL Section 190.50(5)(a) has been clearly interpreted as not substituting a defendant's "verbal" intent to testify before a Grand Jury with service of a "written notice" to testify upon the district attorney. See People v. Green, 187 AD2d 528 (Second Dept., [*2]1992); and People v. Colantonio, 277 AD2d 498, 499 (Third Dept., 2000). Consequently, this Court holds that the verbal notices communicated by the defendant's attorney on January 5, 2007 and January 11, 2007 held no force or effect under the statute.

In a similar fashion this Court holds that the defendant's letter faxed to the district attorney's office on January 12, 2007 likewise did not provide sufficient notice as required under §190.50(5)(a). While the defendant contends that CPLR § 2103 controls the use of "electronic notice" in relevant areas of the Criminal Procedure Law, courts in this state have held otherwise. CPLR 2103 (b)(5) provides an alternative to certain written notices where the party to receive the notice "consents" to receipt via fax transmission. Here, however, there no evidence that the district attorney consented to electronic receipt of the notice to testify. In such an instance CPLR 2103 cannot act as a substitute for the requirements set forth in CPL 190.50(5)(a). See People v. Welch, 190 Misc 2d 195, 196-197 (County Court, Monroe County, 2002) (the defendant's e-mail to the district attorney evincing desire to testify before the Grand Jury held not to be proper written notice).

Moreover, as a general rule the CPLR does not govern procedures enumerated under the Criminal Procedure Law. Insofar as a criminal indictment is not an "action" as defined in CPLR § 105, CPLR 2103 does not apply to the present case. See People v. Fulton, 162 Misc 2d 360, 363 (Supreme Court, Monroe County, 1994).

Therefore, this Court holds that the defendant failed to communicate in writing, and in a timely fashion, his intent to testify before the Grand Jury.

Accordingly, the defendant's motion is denied in all respects.

Dated:March _____, 2007

Rochester, New York

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HON. ALEX R. RENZI

Monroe County Court Judge