The issue in this case is whether a defense attorney may deliberately frustrate a defendant's express desire to testify before the grand jury by refusing to file cross grand jury notice (see CPL 190.50). Under appropriate circumstances, I find that a defense attorney has that authority.

Troy Cox was arrested on August 1, 2006, and charged with a gunpoint robbery in Union Square Park. At his criminal court arraignment, the court appointed a senior staff member of The Legal Aid Society to represent him. Defense counsel reviewed the court records, including the defendant's criminal record, and interviewed the defendant. During the interview, he advised the defendant of his right to testify before the grand jury, but expressed his opinion that in this case it would not be in the defendant's interest to testify. Although the defendant indicated a desire to testify, counsel did not file cross grand jury notice. Subsequently, on the day the case was to be presented to the grand jury, counsel again interviewed the defendant and again advised him against testifying before the grand jury. The defendant re-asserted his desire to testify, but counsel again did nothing to effectuate the defendant's right to testify. The prosecutor, who knew nothing about the defendant's personal desire to testify, thereafter presented the case to the grand jury, which voted to indict the defendant. Following arraignment on the indictment, the [*2]defendant filed a timely pro se motion to dismiss the indictment on the ground that his right to testify before the grand jury was violated (CPL 190.50(5)). He also maintained that he was denied the effective assistance of counsel when his attorney failed to file cross grand jury notice. The court appointed new counsel, who adopted portions of the defendant's motion and filed a memorandum of law in support of the defendant's position that he had been denied the effective assistance of counsel.

Initially, I note that there is no merit to the defendant's pro se claim that the prosecutor violated his statutory right to testify before the grand jury. In order to trigger that right, the Criminal Procedure Law requires that the defendant serve upon the district attorney "a written notice making such request" (see CPL 190.50(5)(a); see also People v Robinson, 187 AD2d 296; People v Saldana, 161 AD2d 441). Requiring written notice is "based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources' and should be strictly enforced" (People v Saldana, supra, 161 AD2d at 444, quoting People v Lawrence, 64 NY2d 200). Here, former counsel never filed the requisite notice; thus, the People had no obligation to provide the defendant with the opportunity to appear.

The sole remaining question, then, is whether the defendant was denied the effective assistance of counsel when his attorney consciously refused to serve grand jury notice on the defendant's behalf, thus thwarting the defendant's desire to testify before the grand jury.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitution (US Const 6th Amend; NY Const, art I, sect 6). The federal standard for ineffective assistance of counsel is set forth in the seminal case of Strickland v Washington (466 US 668), and requires a defendant to show that defense counsel's representation was not reasonably competent and that but for the alleged errors by counsel, there is a reasonable probability that the outcome of the proceeding would have been different (466 US at 694). The New York standard is slightly different. To prevail on his claim that he was denied effective assistance of counsel, defendant must demonstrate that his attorney failed to provide "meaningful representation" (see People v Caban, 5 NY3d 143, 153, People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137). And while a single error may qualify as ineffective assistance, the error must be sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial (see People v Hobot, 84 NY2d 1021; People v Flores, 84 NY2d 184). Importantly, to establish ineffective assistance, a defendant must "demonstrate the absence of strategic or other legitimate explanations" for counsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705).

There is no support for the defendant's position that an attorney's failure to [*3]effectuate the defendant's desire to testify before the grand jury, in and of itself, amounts to a denial of the effective assistance of counsel (see e.g., People v Wiggins, 89 NY2d 872; People v Nobles, 29 AD3d 429; People v Rojas, 29 AD3d 405; People v Dickens, 259 AD2d 450; People v Gibson, 2 AD3d 623; People v Abdullah, 298 AD2d 623; People v Foy, 220 AD2d 220; People v Rivera, 246 AD2d 443; People v Hamlin, 153 AD2d 644). Indeed, the Court of Appeals has come to the opposite conclusion. For instance, in People v Wiggins, where an attorney failed to appear at the stated time of the grand jury proceeding, and thereby prevented the defendant from testifying, the Court not only refused to find per se ineffective assistance of counsel, but reversed the Appellate Division and restored the defendant's conviction (89 NY2d 872, supra). Similarly, in People v Nobles, the First Department held that a defense attorney's withdrawal of cross grand jury notice without first consulting his client did not constitute ineffective assistance of counsel, even though the attorney admitted that he had made a mistake in not consulting with the defendant beforehand. The court noted that the attorney's professional opinion that it was not in the defendant's interest to testify "could have been a reasonable decision by counsel . . . concerned with the perils of providing a prosecutor with potential impeachment material at trial' (People v Nobles, supra, 29 AD3d 429, citing People v Foy, supra, 220 AD2d 220 at 221). Even where a defense attorney allegedly ignored a defendant's "express desire to testify before the grand jury" it would not, standing alone, amount to ineffective assistance of counsel (People v Hamlin, supra, 153 AD2d 644).^[FN1]

Here, at a hearing held before me, defense counsel provided several cogent reasons why he consciously decided not to file grand jury notice in this case on the defendant's behalf. First, he noted that he did not have a blanket policy of discouraging clients from testifying before the grand jury, but instead made the decision based on the circumstances [*4]of each case. Here, among the reasons he gave for believing the defendant should not testify included that the defendant was on felony probation and, obviously, would be impeached with his prior record in the grand jury. Further, he thought that the likelihood of defendant's success in the grand jury was minimal, and he was concerned that, as often happens in New York County, any later plea bargaining would be compromised if the defendant testified. He worried that the defendant's testimony before the grand jury would ultimately hurt the defendant's chance to succeed at trial because it would likely provide the prosecutor with impeachment material should the defendant elect to testify at trial.

Counsel also mentioned that the lack of his ability to participate actively in the grand jury proceeding would hinder the defendant's likelihood of success in the grand jury. He was generally concerned that he could not protect his client during the proceeding because he would be unable to cross the complaining witness, conduct his own direct examination of the defendant or make any summation arguments to the grand jurors. In light of these logical and sound reasons, I find that counsel's decision was in line with professional standards of competence.

The defendant nonetheless argues that the decision to testify is a "fundamental" one reserved to the defendant, and cannot be unilaterally waived by his attorney, despite counsel's sound strategic reasons for his course of action. While it is true that there are certain fundamental decisions reserved to the defendant, including the right to testify at trial (see People v Ferguson, 67 NY2d 383, 390; ABA Standards for Criminal Justice 4-5.2 [Third Ed.]), the defendant cites to no authority which holds that the decision to testify before the grand jury is a "fundamental decision reserved to the defendant." Indeed, in light of Wiggins and its progeny, it is hardly surprising that no court has found per se error when an attorney overrides a defendant's desire to testify in the grand jury. For the most part, "a defendant who has a lawyer relegates control of much of the case to the lawyer . . ." (People v Ferguson, supra, 67 NY2d at 390)

Moreover, it would be wrong to equate the right of a defendant to testify in the grand jury with his right to testify at trial. A defendant's right to testify before a grand jury, while significant, is simply not of constitutional dimension (see Lopez v Riley, 865 F.2d 30, 32; Saldana v New York 850 F.2d 117, 119). It did not exist at common law and was not established by the Legislature until 1940 (see People v Feliciano, 207 AD2d 803, 804). It is a limited statutory right, and only accrues upon formal and timely written notice of a defendant's intent to testify. As a practical matter, the right is not provided at all to targets of a grand jury investigation. CPL 190.50 provides that the prosecution is only required to inform a suspect of an ongoing grand jury investigation where the suspect is a defendant who has been "arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding" (CPL 190.50(5)(a);). Thus, while the legislature has provided some defendants, in limited specified situations, a mechanism to get notice of grand jury proceeding, the statutory scheme as a whole provides meager support for the [*5]defendant's position that the right to testify in the grand jury stands on similar footing to that provided a defendant at trial.

Further, a grand jury proceeding does not represent a level playing field presided over by a neutral judge, nor is it intended to be an adversarial proceeding (People v Brewster, 63 NY2d 419). Rather, although an independent body, questions are presented solely through the prosecutor, and the People "enjoy wide latitude in presenting their case" (People v Lancaster, 69 NY2d 20, 25). A defense attorney has no authority to take any part in the proceeding other than to advise his client (CPL 190.52(2)). There is no right of discovery (People v Walker, 15 AD3d 902) or to learn what other evidence the grand jury has heard. The defendant has no right to a Sandoval ruling (People v Thomas, 213 AD2d 73), obtain a witness list or the prior statements of the defendant. The defendant need not be told the whole scope of the investigation nor the precise charges to be presented. He cannot submit lesser included offenses (contrast CPL 300.50(3)(a)), or present legal instructions or make a summation argument. Importantly, the District Attorney is under no obligation to present all evidence in his possession that is favorable to the accused and is free to seek the highest charge supported by the evidence (People v Valles, 62 NY2d 36, 51).

Many of these issues are not apparent to those accused of crimes, who are usually unversed in the complex procedures utilized in New York to bring felony charges against a defendant. Moreover, many of these considerations were expressly provided as the reasons why the defense attorney in this case believed it was not in the defendant's interest to testify before the grand jury. This decision, made in the preliminary stages of a case, is precisely the type of strategic decision that is best left to the sound discretion of an attorney, after consulting with the defendant. Here, because I find that counsel made a legitimate strategic decision after discussing the matter with the defendant, the defendant's complaint that he was afforded ineffective assistance of counsel is without merit. The motion is therefore denied.

So ordered.

______________________

Daniel P. FitzGerald, J.S.C.

May 17, 2007