UPON reading and filing the within Notices of Omnibus Motion, dated February 15, 2016 and March 21, 2016, submitted by Richard A. Berube, Esq., attorney for the defendant, ROYAL D. HALL, the Answer in Response of Allison J. Stuart, Esq., Senior Assistant District Attorney for the County of Dutchess, dated April 13, 2016, the Grand Jury minutes, and upon all the papers and proceedings had herein, it is hereby Ordered that defendant's motions are decided as follows:

Defendant moves, inter. alia., for an Order pursuant to CPL §§190.50(5)(a) and 210.20 dismissing the Indictment on the ground of defective Grand Jury proceedings, alleging that defendant was not given an opportunity to appear and testify before the Grand Jury.

The People's contention that defendant's motion to dismiss is untimely is without merit. A motion to dismiss pursuant to CPL §190.50(5)(c) must be made within five days from the date of defendant's arraignment. Defendant was arraigned on the superceding Indictment on February 10, 2016. Defendant's motion, mailed to the District Attorney on February 16, 2016, was timely, since February 15, 2016, the fifth day after arraignment, was a legal holiday (See, CPLR §2103[b][2] & General Construction Law §25-a).

The facts underlying defendant's motion generally are not in dispute. On October 22, 2015, defendant was arrested and charged with Rape in the First Degree (Penal Law §130.35[1]), and related crimes. Defendant initially was represented by Glenn Bruno, Esq. Prior to submission of the case to the Grand Jury, the District Attorney served Mr. Bruno with Notice of Presentation to the Grand Jury. Mr. Bruno did not advise the District Attorney that defendant wished to testify before the Grand Jury. An Indictment was filed on October 27, 2015. On November 10, 2015, defendant was arraigned on the Indictment. On or about November 12, 2015, attorney Richard A. Berube, Esq. was assigned to represent defendant in place of Mr. Bruno. On December 28, 2015, Mr. Berube filed and served an Omnibus Motion which, inter. alia., sought dismissal of the Indictment on the ground that defendant was not given an opportunity to appear and testify before the Grand Jury. In his Affirmation in Support, Mr. Berube advised the Court that defendant wished to testify before the Grand Jury and made his intentions clear to his attorney, Glen Bruno. The motion also was accompanied by an Affidavit, signed by defendant, which stated "I told Mr. Bruno that I wanted to testify in the Grand Jury proceeding scheduled for October 27, 2015. I request that the indictment be dismissed for failing to allow me to testify in the Grand Jury." Although defendant's motion to dismiss was denied, it is clear that on December 28, 2015, the Dutchess County District Attorney was placed on notice, in writing, by defendant's present attorney, that defendant wished to testify in the Grand Jury.

On February 3, 2016, the District Attorney re-opened the case by presenting additional proof to the Grand Jury and filing a superceding Indictment. Defendant was arraigned on said Indictment on February 10, 2016. By motion dated February 15, 2016, defendant moved to dismiss on the ground that the District Attorney failed to afford defendant an opportunity to appear and testify before the Grand Jury during the presentation that resulted in the filing of the superceding Indictment.

The law is clear that a defendant has the right to appear before a Grand Jury when "prior to the filing of any indictment . . . he serves upon the district attorney . . . a written notice making such request" (See, CPL §190.50[5][a]). It has been held that this right applies to superceding indictments (See, People v Grecco, 230 AD2d 23). In the present case, there can be no question that the District Attorney was made aware of defendant's request and desire to testify before the Grand Jury by the Omnibus Motion submitted by defendant's attorney on December 28, 2015. Accordingly, the District Attorney had an obligation to permit defendant to testify when it re-opened the case on February 6, 2016, to present additional evidence to obtain a superceding Indictment. Since it failed to do so, the Indictment charging defendant, ROYAL D. HALL, must be dismissed.

Upon dismissal of an Indictment based on a defective Grand Jury proceeding, Section 210.20(4) of the Criminal Procedure Law permits the Court, in its discretion, to allow the District Attorney an opportunity to re-present the case to "the same or another Grand Jury". The District Attorney has advised the Court that the Grand Jury which returned the Indictment and superceding Indictment remains empaneled and is available to consider defendant's testimony. Defendant's attorney, however, in a letter to the Court dated May 17, 2016, requested the Court to permit re-presentation to a Grand Jury other than the same Grand Jury which already voted, on two occasions, to return an Indictment against defendant.

For the reasons set forth herein, the Court finds that defendant would be unduly prejudiced if he was required to testify before the same Grand Jury which previously indicted him on two separate occasions. The Grand Jury first heard testimony from the alleged victim on this case On October 27, 2015, almost seven months ago, when the Indictment originally was voted. During that presentation, the Grand Jury also heard evidence from a police officer that statements were made by the co-defendant which implicated defendant. The case was re-opened on February 3, 2016, when the District Attorney presented additional evidence whereupon the Grand Jury voted, a second time, to file an Indictment against defendant. Under these circumstances, in the interest of justice and in the exercise of the Court's discretion, the re-[*2]presentation of this case must be before a Grand Jury other than the Grand Jury which returned the Indictment against defendant.

Based on the foregoing, defendant's motion to dismiss is granted. The District Attorney is given leave to re-present the case to a different Grand Jury within forty-five days from the date of this Decision and Order.

Defendant's remand without bail is continued.

The aforesaid constitutes the Decision and Order of the Court.