[*1]
People v Raines
2015 NY Slip Op 50432(U) [47 Misc 3d 1204(A)]
Decided on March 31, 2015
Supreme Court, Kings County
Williams, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 31, 2015
Supreme Court, Kings County


The People of the State of New York

against

Bryant Raines, Defendant




9109/2014



For the Defendant:
Hermann P Walz
40 Exchange Place, Suite 2010
NY, NY 10005
By: Hermann P. Walz

For the People:
The Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
By: Owen Sucoff


Betty J. Williams, J.

The Assigned Counsel, on behalf of the defendant, moves to have this court dismiss the indictment pursuant to CPL §§190.50 and 210.35(4), alleging that the People failed to provide the defendant an opportunity to testify before the Grand Jury. The People oppose the defendant's motion. For the reasons that follow, the defendant's motion is denied.The Assigned Counsel, on behalf of the defendant, moves to have this court dismiss the indictment pursuant to CPL §§190.50 and 210.35(4), alleging that the People failed to provide the defendant an opportunity to testify before the Grand Jury. The People oppose the defendant's motion. For the reasons that follow, the defendant's motion is denied.

A defendant's right to testify before the Grand Jury is clearly set forth in CPL §190.50(5). When a criminal charge against a person is being, or is about to be, or has been submitted to a Grand Jury, such person has a right to appear before such Grand Jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent (CPL §190.50(5); People v Jordan, 153 AD2d 263, 266 [2d Dep't], lv denied 75 NY2d 967 [1990]).

Upon receipt of notice of a defendant's intention to testify before a Grand Jury, the District Attorney must subsequently serve upon the defendant, at the address specified, a notice that the matter will be heard by the Grand Jury at a given time and accord the defendant a reasonable time to exercise the defendant's right to appear as a witness therein (Id; see also People v Jones, 126 Misc 2d 104, 105 [Crim. Ct. Kings Co. 1984]). However, it is within the purview of the defense counsel to make a well-reasoned, strategic decision to forego the defendant's right to testify before the Grand Jury (People v George, 275 AD2d 799 [2d Dep't], lv denied 95 NY2d 963 [2000]; People v Dozier, 94 AD3d 1226 [3d Dep't], lv denied 19 NY3d 996 [2012]; People v Lasher, 74 AD3d 1474 [3d Dep't], lv denied 15 NY3d 912 [2010]; People v Wilkins, 188 AD2d 320 [1st Dep't], lv denied 81 NY2d 978 [1993]). "The strategic decision to testify before the grand jury requires the expert judgment of counsel' [internal citation omitted] because it involves weighing the possibility of a dismissal, which, in counsel's judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses." (People v Brown, 116 AD3d 568, 569 [1st Dep't], lv denied 24 NY3d 1001 [2014]).

On November 1, 2014, the defendant was arraigned on a felony complaint in Criminal Court, where the defendant was represented by the Legal Aid Society. At the criminal court arraignment, the People served notice, pursuant to CPL §190.50, that the Grand Jury presentment would be held on November 6, 2014, and on behalf of the defendant, the Legal Aid Society served on the People, CPL §190.50 notice of the defendant's intention to testify in the Grand Jury. On November 6, 2014, the Legal Aid Society signed a "Waiver of Immunity", withdrawing CPL §190.50 notice of the defendant's intention to testify in the Grand Jury. On January 6, 2015, the defendant was arraigned on the instant indictment in Supreme Court, at which time Assigned Counsel was appointed to replace the Legal Aid Society as counsel for the defendant. The appointment of Assigned Counsel was predicated upon the defendant's claim that the Legal Aid Society withdrew CPL §190.50 notice of the defendant's intention to testify before the Grand Jury, and did so without exploring in detail what statement the defendant would make before the Grand Jury and without first informing the defendant that the Legal Aid Society was going to withdraw CPL §190.50 notice of the defendant's intention to testify before the Grand Jury. A motions schedule was set by the court on January 6, 2015, and Assigned Counsel filed the instant motion to dismiss the indictment for violation of the defendant's CPL §190.50 right to testify before the Grand Jury on or about January 22, 2015.


This court finds that the People provided notice to the defendant of the Grand Jury proceeding five days before the Grand Jury presentment and thereby accorded the defendant a reasonable time to appear. (CPL §190.50; Jordan, supra; Jones, supra; People v Ramrattan, § — AD3d &mdash, 2015 NY Slip Op 02506 [2d Dep't March 25, 2015]). Upon receiving proper notice of the imminent Grand Jury presentment, counsel for the Legal Aid Society properly served notice of the defendant's intention to testify before the Grand Jury (id.). After meeting with the defendant, counsel for the Legal Aid Society properly exercised a strategic decision to forego the defendant's testimony before the Grand Jury (George, supra; Brown, supra; Dozier, supra; Lasher, supra; Wilkins, supra). Even assuming arguendo that the Legal Aid Society's decision to forego the defendant's right to testify before the Grand Jury was done without the defendant's [*2]consent, the defendant has failed to attach an affidavit attesting to any sworn facts that the defendant was either prejudiced by the failure of the Legal Aid Society to effectuate the defendant's appearance before the Grand Jury or that had the defendant testified in the Grand Jury, the outcome would have been different. (People v Santiago, 72 AD3d 492 [1st Dep't], lv denied 15 NY3d 757 [2010]). This is in stark contrast to the People's sworn affirmation of personal knowledge regarding the Legal Aid Society's withdrawal of the defendant's intention to testify before the Grand Jury and the People's attached exhibits.

Finally, where a violation of defendant's right to testify before the Grand jury is asserted, relief pursuant to section CPL §190.50, must be sought within five days of the defendant's arraignment upon the indictment. (CPL §190.50[5][c]; People v Green, 119 AD3d 23 [3d Dep't], lv denied 23 NY3d 1062 [2014]; People v Yontz, 116 AD3d 1242 [3d Dep't], lv denied 23 NY3d 1026 [2014]). If the contention of a violation of the defendant's right to testify before the grand jury is not asserted in timely fashion, it is waived and the indictment may not thereafter be challenged on such grounds (People v Simon, 101 AD3d 908 [2d Dep't], lv denied 23 NY3d 1067 [2014]; People v Occhione, 94 AD3d 1021 [2d Dep't], lv denied 19 NY3d 976 [2012]). Even if the defendant's motion had merit, this court would be constrained to deny a motion filed after five days. (CPL §190.50[5][c]; Simon, supra; Occhione, supra).

The foregoing constitutes the decision and order of the court.


Dated: March 31, 2015
_______________________
BETTY J. WILLIAMS, J. S.C.
Brooklyn, New York