The following papers were read in connection with this motion:

1. Defendant's Motion, Affirmation in Support, and Exhibits;

2. People's Affirmation in Response and Exhibits;

3. Defendant's Reply Affirmation in Support.

Defendant moves this Court to vacate the People's Certificate of Compliance (hereinafter "COC") and Statement of Readiness (hereinafter "SOR") and dismiss the indictment pursuant to CPL § 30.30, and/or dismiss the indictment claiming the integrity of the Grand Jury presentation was impaired. Defendant asserts that the People did not turn over a portion of the Grand Jury minutes that they were required to turn over thereby arguing their COC and SOR were illusory and speedy trial time ran under CPL § 30.30. Defendant further asserts that the Grand Jury presentation was impaired by the People indicating she would "introduce" the defendant's prior criminal act; not telling defendant the questions she would ask him about his prior criminal record; by failing to "instruct or erroneously instruct[ing] the Grand Jury on the defendant choosing not to testify;" and because the assistant district attorney indicated that she would introduce the defendant's prior criminal or immoral acts. The People oppose defendant's motion is all respects. Initially, they argue that the defendant's motion is untimely. They then assert that [*2]the Grand Jury proceeding was not defective because they are permitted to question the defendant on his prior criminal conduct and that they provided appropriate instructions to the Grand Jury. They further argue that their COC and SOR were proper because the Grand Jury minutes defendant claims were not turned over were not required to be turned over to him under CPL § 245 and that therefore the defendant was not denied his right to a speedy trial.

Defendant was arrested on November 19, 2023, for the crimes alleged in this case. He was arraigned on a felony complaint on November 20, 2023. The People presented the case to the Grand Jury on November 21, November 30, and December 1, all of 2023. Defendant's attorney notified the People of defendant's intent to testify on his behalf in front of the Grand Jury. On the day defendant was going to testify, he and his attorney met with the People and had a conversation on the record but outside the presence of the Grand Jury. During that conversation, defense counsel inquired what crimes specifically the People intended to question the defendant about, and the People informed defense counsel that they intended on questioning the defendant regarding his prior criminal convictions indicating they could be an element of a charge being presented to the Grand Jury. Defense counsel asked the People if a prior gun possession conviction was going to be the element of one of the crimes they intended to present to the Grand Jury. When the People informed the defense counsel that they could not comment on that inquiry, defense counsel objected and requested to speak to the Grand Jury judge about that issue. The People told defense counsel that she did not believe he was entitled to see the Grand Jury judge on that issue and that it would be "reviewed as part of the Grand Jury minutes review." Following this conversation, defendant decided he no longer wanted to testify in the Grand Jury. The People instructed the Grand Jury as follows: "I previously informed you that the defendant had chosen to testify. He has since decided not to testify before you. . . I am instructing you to draw no inferences about that decision from the defendant with regard to your deliberations."

Defendant was subsequently indicted for two counts of Criminal Possession of a Weapon in the Second Degree (PL §§ 265.03[3] and 265.03[1][b]), two counts of Criminal Possession of a Weapon in the Third Degree (PL §§ 265.02[5][ii] and 265.02[1]), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[1]), Criminal Possession of a Firearm (PL § 265.01-b), Obstructing Governmental Administration (PL § 195.05), and Resisting Arrest (PL § 205.30). He was arraigned on the indictment on January 5, 2024. On February 9, 2024, the People filed a COC and SOR, and the parties signed stipulations in lieu of motions for an in-camera review of the Grand Jury minutes. Also on that day, the People provided the Court with a complete copy of the Grand Jury minutes via email, including the portion in defendant's exhibit "C" and People's exhibit "1" attached to their motions. This Court reviewed the Grand Jury minutes and issued an order and decision on February 27, 2024, finding the Grand Jury minutes sufficient, that the proceeding was not defective, that the instructions and legal advice were proper and adequate, and that it was not necessary to release the Grand Jury minutes to defense counsel. Although the instant motion was made outside of the statutory timeframe, the attorney who filed the motion for the defendant is new to the case and this Court will decide this motion on the merits. CPL § 255.20(1).

Initially, "Grand Jury proceedings are secret." CPL § 190.25(4)(a). However, pursuant to CPL § 245.20(1)(b), the People must disclose to the defendant "all transcripts of the testimony of a person who has testified before a Grand Jury, including but not limited to the defendant or a co-defendant." The portion of the Grand Jury minutes defendant is placing in issue was not [*3]turned over to him as it was not required to be turned over pursuant to CPL § 245.20(1)(b) since it was not "testimony of a person who testified before a Grand Jury" due to the fact it was a conversation between defendant's then counsel and the People outside the presence of the Grand Jury. Therefore, the People complied with their discovery obligations pursuant to CPL Article 245 when they filed their COC and SOR on February 9, 2024, and those documents were valid and not illusory. Moreover, because the portion of the Grand Jury minutes in People's exhibit "1" and defendant's exhibit "C" were not required to be turned over under CPL Article 245, the People were not required to file a supplemental COC after disclosing those minutes.

The calculation of speedy trial time is controlled by CPL § 30.30. The People must be ready for trial within six months of the commencement of an action wherein the defendant is charged with having committed a felony offense. CPL § 30.30(1)(a). In this case, the criminal action commenced with the filing of the felony complaint on November 20, 2023, making the six-month period the equivalent of 183 days. Although neither side provided documents for the adjournments prior to February 9, 2024, the date the People filed their initial, valid COC and SOR, only 82 days of possible speedy trial time had elapsed at that time, well under the 183 days. Therefore, even if all that time from November 20, 2023, to February 9, 2024, was chargeable to the People, defendant's right to a speedy trial has not been violated.

A defendant's criminal record that demonstrates his willingness to place his own interests above those of society has been held to be a proper subject for cross-examination of that defendant in the Grand Jury. People v. Brims, 145 AD3d 1025 (2d Dept 2016); People v. Gans, 119 Misc 2d 843 (Sup. Ct. NY Co. 1983); People v. Thomas, 213 AD2d 73 (2d Dept 1995). In Thomas, where the People cross-examined that defendant in the Grand Jury on some of his prior convictions including some similar to the crime he was then charged with, the Second Department held that "the prosecutor's cross-examination of the defendant before the Grand Jury was proper and did not impair the integrity of the Grand Jury." Thomas, supra at 77; see also, People v. Hawkins, 216 AD2d 414 (2d Dept 1995). Here, questions regarding defendant's criminal convictions would have been proper on cross-examination if he had testified in the Grand Jury. Further, although in this case the People informed defense counsel of some questions they intended to pose to defendant regarding his prior criminal record if he chose to testify in the Grand Jury, the People were not required to give that information to defendant or defense counsel. Hawkins, supra. Moreover, defendant was not entitled to a hearing pursuant to People v. Sandoval prior to testifying, or deciding to testify, in the Grand Jury. Thomas, supra (declining to extend the holding in People v. Sandoval to Grand Jury proceedings because there is a "crucial distinction between a trial and a Grand Jury proceeding" and therefore "the defendant's testimony at a Grand Jury is of lesser importance than it would be at trial"); Hawkins, supra.

Defendant further argues that the indictment should be dismissed asserting that the People's instruction regarding defendant's decision not to testify impaired the integrity of the Grand Jury because it "failed to instruct or erroneously instructed the Grand Jury on the defendant choosing not to testify." This Court disagrees. The People's instructions and legal advice to the Grand Jury were proper and adequate and did not impair the integrity of the Grand Jury. CPL § 210.35(5). Specifically, after the defendant decided not to testify in the Grand Jury, the People adequately instructed the Grand Jury to "draw no inferences about that decision from the defendant." Even if this Court found that the People's instruction to the Grand Jury regarding defendant's decision not to testify was not adequate, "the 'exceptional remedy of dismissal' is [*4]available in 'rare cases' of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the Grand Jury might have decided not to indict the defendant." People v. Thompson, 22 NY3d 687, 699 (2014). This is not one of those "rare cases," especially here where the evidence presented to the Grand Jury was sufficient to sustain an indictment. Id; People v. Thompson, 116 AD2d 377, 383 (2d Dept 1986).

Accordingly, defendant's motion is denied in its entirety.

This determination shall constitute the decision and Order of the Court.