Supreme Court, Kings County, February 23, 2021

Legal Aid Society, New York City (Paul Beyder of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Daniela Adao of counsel), for plaintiff.

The defendant moves for an order, pursuant to CPL 190.50, to dismiss the indictment on the ground that the People deprived her of an opportunity to testify before the grand jury. Upon due consideration of the papers, the defendant's motion is denied.

On July 29, 2020, the defendant was arraigned in Criminal Court on a felony complaint, under Kings County docket No. CR-014197-20KN, which charged her with assault in the first degree and other related offenses. At that time, the People served written CPL 190.50 notice upon defense counsel, who thereafter served reciprocal CPL 190.50 notice, informing the prosecution of defendant's intent to testify before the grand jury.

The following facts are essentially undisputed by either party. At the defendant's criminal court arraignment, the court set bail, entitling the defendant to a preliminary hearing to determine whether there exists reasonable cause to believe that she committed the offenses charged. However, the defendant posted bail on July 31, 2020, rendering the hearing unnecessary. Prior to convening a grand jury, the People sent defense counsel an email, dated October 5, 2020, notifying counsel that the defendant was scheduled to testify in the grand jury at 11:30 a.m. on October 13, 2020. Defense counsel made no effort to postpone or reschedule the defendant's testimony, and the defendant did not appear in the grand jury on October 13, 2020. The grand jury subsequently returned indictment No. 1653-2020, and the defendant was arraigned thereon in Supreme Court on November 18, 2020.

There is no federal or state constitutional right to testify before a grand jury (People v Smith, 87 NY2d 715 [1996]; People v Lighthall, 6 AD3d 1170 [4th Dept 2004]). An individual's right to appear as a witness before a grand jury convened to consider charges against him or her is purely statutory (see CPL 190.50). Where a defendant timely serves the People with written notice of his or her desire to testify before the grand jury, the People must accord defendant a reasonable opportunity to do so (People v Sawyer, 96 NY2d 815 [2001]; People v Pugh, 207 AD2d 503 [2d Dept 1994]). What constitutes a reasonable{**71 Misc 3d at 639} opportunity is determined on a case-by-case basis (Sawyer at 816; People v Jordan, 153 AD2d 263 [2d Dept 1990]).

The defendant argues that the People's alleged failure to turn over automatic discovery prior to her scheduled appearance date effectively deprived her of a reasonable opportunity to testify before the grand jury despite her timely service of cross CPL 190.50 notice. In [*2]opposition, the People argue that the defendant's claim is without merit because her failure to testify before the grand jury was of her own creation.

CPL 245.10 (1) (c) provides,

"The prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any 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 a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part."

Notably, it is the only subsection of the statute that explicitly refers to a defendant's right to appear before the grand jury, which reflects legislative intent to limit application of the prospective disclosure obligation imposed under the provision to those discoverable materials specifically enumerated therein. Consequently, it is only necessary to consider the defendant's claim in the context of the purported nondisclosure^[FN1] of statements the defendant may have uttered to law enforcement officers (see CPL 245.20 [1] [a]).

The defendant acknowledges that the People served CPL 710.30 (1) (a) notice at her criminal court arraignment, which contains the defendant's statement to Detective Christopher Hinton Kelly at approximately 5:30 (a.m.) on July 28, 2020, in sum and substance, "my child's name is [S.V.] and his date of birth is [X]/[X]/2019." The People also furnished the defendant with a copy of the Miranda warning sheet, which indicates that Detective Hinton Kelly administered the warnings at approximately 11:30 a.m. on July 28, 2020. Based on those circumstances, defense counsel concludes that the People's statement{**71 Misc 3d at 640} notice memorializes only a fragment of an hours-long interrogation.

Preliminarily, the People clarify that the defendant made the statement in question at 5:30 p.m. on June 28, 2020.^[FN2] They further explain that the information was elicited from the defendant at the request of the Early Case Assessment Bureau screener, and that no additional communication transpired. The People maintain that the defendant was not interrogated due to her initial refusal to waive her Miranda rights and submit to questioning. The defendant's speculative claims fail to demonstrate that there is reason to doubt the People's representation to the court.^[FN3]

In any event, the People aver that "my child's name is [S.V.] and his date of birth is [X]/[X]/2019" was the only statement the defendant made to law enforcement officers. The People's CPL 710.30 (1) (a) notice provided the substance of the statement and was served well prior to the 48-hour period immediately preceding the defendant's scheduled appearance in the grand [*3]jury. Consequently, the People satisfied the requirements of CPL 245.10 (1) (c).^[FN4]

As the People observe, despite being concerned that the People had not disclosed all custodial statements, defense counsel did not reach out to the People to address the matter. The defendant scoffs at the People's suggestion, noting that defense counsel is not required to apprise the People of a procedural deadline before it arrives, which would allow the People the opportunity to cure any defects—a fact which cannot reasonably be disputed. However, as this case shows, that approach can be precarious; here, the defendant opted not to{**71 Misc 3d at 641} appear before the grand jury based on an erroneous assumption that the People had not turned over all of the defendant's statements to law enforcement.

Moreover, that concern does not excuse the defendant's decision not to appear on the grand jury date. If the People had introduced an undisclosed statement, defense counsel would have been able to stop the proceeding and seek a ruling by the court.

Where "[t]he record supports the conclusion that [defendant's] failure to testify was based on his own actions," the People are not required to reschedule his appearance to satisfy their obligations under CPL 190.50 (5) (a) (People v McKay, 85 AD3d 821, 822 [2d Dept 2011]; People v Quinones, 280 AD2d 559 [2d Dept 2001]). Thus, because the People furnished defendant with a reasonable opportunity to testify before the grand jury, dismissal of the indictment is not warranted (see People v Simmons, 10 NY3d 946 [2008]; People v Boswell, 163 Misc 2d 529 [Sup Ct, Kings County 1994]).

Accordingly, the defendant's motion is denied.