Defendant moves to dismiss the indictment on the grounds that he was denied the right to testify before the Grand Jury. The People oppose the motion.

By Indictment dated March 31, 2010, defendant was indicted for Assault in the Second Degree and Criminal Possession of a Weapon in the Third Degree. The underlying alleged conduct is that on March 20, 2010 the defendant intentionally hit Matthew Ahrendt in the face and head with a wrench, causing him physical injury.

The motion, brought within 5 days of arraignment on the indictment, is timely (see CPL 190.50 [5][c]).

Defendant was apprehended in the early morning hours of March 20, 2010 behind Ahrendt's house as he jumped down from the deck and arrested thereafter on a felony complaint charging Assault in the Second Degree and alleging that Ahrendt [*2]suffered a fracture on the left side of his face. The supporting deposition of Ahrendt dated March 20, 2010 alleges that Ahrendt came home unexpectedly in the middle of the night and discovered his paramour engaged in sexual intercourse with defendant on the living room floor; that upon being surprised by Ahrendt, defendant picked up a nearby wrench and hit Ahrendt in the face and head, whereupon Ahrendt fell down the entry stairs and fled the house.

On Monday, March 22, 2010 defendant appeared for arraignment on the felony complaint in the Town of Thompson Justice Court. He was represented by Mr. Bruni from Sullivan County Legal Aid, Inc. Defendant requested a preliminary hearing. The Town Justice was not available for the preliminary hearing until Thursday, March 25, 2010. The People advised that the victim might be unavailable on that date due to medical reasons. The matter was adjourned for scheduling the preliminary hearing later in the week.. Defendant states that he told his attorney at that time that he wanted to testify before the Grand Jury.

On Tuesday, March 23, 2010, the People notified Mr. Bruni in writing that the matter was being presented to the Grand Jury on Wednesday, March 24, 2010. The Assistant District Attorney states that Mr. Bruni told him that he (Bruni) received the notice and faxed it to Mr. Schick, who appears with Sullivan County Legal Aid, Inc. on county court matters, on March 23, 2010 so that Schick could discuss the right to appear before the Grand Jury with the defendant.

The matter was presented to the Grand Jury on March 24, 2010; defendant did not testify before the Grand Jury. A certificate of vote was sent to the Town of Thompson Justice Court and no preliminary hearing was held. The indictment was filed with the Sullivan County Court on March 31, 2010.

It is undisputed that defendant did not file a written notice requesting to testify pursuant to CPL 190.50(5)(a); nor did any attorney from Sullivan County Legal Aid, Inc. notify the People, after receiving the notice of the pending Grand Jury proceeding, that the defendant wanted an opportunity to testify; nor did any attorney request an adjournment of the presentation or an extension of time in which to confer with the defendant.

CPL 190.50(5)(a) requires the district attorney to notify a defendant, or his attorney, who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding of the grand jury proceeding and accord the defendant a "reasonabletime" to exercise his right to appear as a witness. "CPL 190.50(5)(a) does not mandate a specific time period for notice; rather, reasonable time' must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a Grand Jury. The concept of reasonableness is flexible and must be applied to the particular facts of a case as known at the time" (People v Sawyer, 96 NY2d 815 [2001]). In Sawyer, the Court of Appeals held that 1 ½ days was a reasonable time under the circumstances of that case.

Although this case bears similarities to Sawyer in that no lengthy period of time was required in which to investigate the charges and determine whether the defendant [*3]should testify at the Grand Jury stage of the proceedings ^[FN1], the circumstances of defendant's legal representation call for a different result.

Where defendant had informed his Legal Aid attorney in the Town Justice Court that he wanted to testify and where different Legal Aid attorneys appear at the Justice Court level and the County Court level, less than 24 hours is unreasonable and inadequate notice. Defendant had only met once at his Justice Court arraignment with Mr. Bruni. Mr. Schick, appearing at the County Court level for the Grand Jury presentation, who the defendant had not yet met, should have had a longer period of time in which to confer with the defendant to discuss the option of appearing before the Grand Jury and prepare for his appearance.

Accordingly, the indictment must be dismissed pursuant to CPL 210.20(1)(c) and 210.35(4). The People are authorized pursuant to CPL 210.20 (4) to resubmit the charges to the same or another Grand Jury; and, in that event, the People shall provide the defendant with reasonable notice of the presentment date.

Defendant's omnibus motion dated April 21, 2010 is hereby rendered moot.

Therefore, it is

ORDERED that the defendant's motion is granted and Indictment #55/2010 is hereby dismissed with authorization to represent as above set forth.

This shall constitute the Decision and Order of this Court.

DATED: May, 2010

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge