Supreme Court, Kings County, April 19, 2018

Wayne C. Bodden for defendant.

Eric Gonzalez, District Attorney (Cassandra Pond of counsel), for plaintiff.

Defendant moves to dismiss the indictment because the People failed to provide him an opportunity to testify before the grand jury (see CPL 190.50 [5] [a], [c]; 210.20 [1] [c]; 210.35 [4]). The People argue that because he was hospitalized and unable to be arraigned or produced to testify before the grand jury they were not required to afford him an opportunity to testify. For the reasons that follow, defendant's motion is granted.

On December 23, 2017, defendant was shot. As medical personnel moved him onto a stretcher, they allegedly observed a firearm fall out of his pants. Defendant was admitted to Lutheran Medical Center and arrested.

The People presented this matter to a grand jury on December 28 and 29. On the 28th an attorney from Brooklyn Defender Services served notice on the District Attorney that defendant intended to testify before the grand jury. Although the People received this notice, they nonetheless requested the grand jury to vote on the charges on December 29, while defendant remained hospitalized. They secured an indictment and filed it the same day.

The People contend that because defendant had not been medically cleared to be produced in court they did not need to delay the grand jury's vote.

According to CPL 190.50 (5) (a) a defendant has a qualified right to appear before a grand jury as a witness in his or her own behalf when "a criminal charge is being or is about to be or has been submitted to a grand jury." To exercise this right, a defendant must, prior to the filing of the indictment, serve upon the district attorney written notice of his or her intent to testify (see People v Jordan, 153 AD2d 263, 266 [2d Dept 1990], lv denied 75 NY2d 967 [1990]). The People are under no obligation to inform a defendant of a pending or prospective grand jury presentation unless the defendant has been arraigned upon a felony complaint (CPL 190.50 [5] [a]; People v Martin, 132 AD3d 909 [2d Dept 2015], lv denied 26 NY3d 1110 [2016]).

The People argue that because defendant was not entitled to notice of the grand jury presentation—as he had not been arraigned on a felony complaint—he was also not entitled to {**60 Misc 3d at 437}testify before the grand jury. But the statute expressly states that when a defendant has served notice of his or her intent to testify, the district attorney "must" inform the grand jury foreperson of defendant's request to testify and "must" give defendant notice of when he or she may do so (CPL 190.50 [5] [b]; People v Luna, 129 AD2d 816 [2d Dept 1987], lv denied 70 NY2d 650 [1987]). In other words, the People's obligation to permit a defendant to testify is independent of their obligation to notify a defendant of his right to testify.

The People also argue that defendant's hospitalization, which prevented his being arraigned, as well as his being produced to testify in the grand jury, excuses their failure to afford him an opportunity to testify. Again, the statute contains no exception for this circumstance. The statutory right of defendants to testify before the grand jury may be abridged only where their "[non]appearance is . . . attributable to defendants themselves" (People v Evans, 79 NY2d 407, 415 [1992]). The reason for strict compliance with the right to testify is to "protect[ ] defendants' valued statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury's consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution." (Id. at 413-414.)

Accordingly, defendant's hospitalization cannot be "attribut[ed]" to defendant so as to excuse the People's failure to delay the grand jury's vote until he had an opportunity to offer testimony at this "critical accusatory stage" (id. at 414; People v Greenfield, 178 AD2d 653 [2d Dept 1991], lv denied 79 NY2d 1049 [1992] [dismissing indictment where defendant was not produced in time to participate in grand jury proceedings]; cf. People v Lyons, 40 AD3d 1121 [2d Dept 2007] [defendant not deprived of opportunity to testify as a result of his hospitalization because he could have notified district attorney of his intent to testify after indictment was voted and before it was filed], lv denied 9 NY3d 878 [2007]).

For these reasons, defendant's motion to dismiss the indictment is granted.