Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #8©

Issue: Which party must give notice for the defendant to testify at grand jury?

IN an earlier Issue, in discussing sealed indictments, I referred to the need to notify the prosecutor's office of the defendant’s intention to testify. That caused a mini-stir among a few readers, who challenged the statement. If a case is being presented to the grand jury, is it the DA's obligation or the defense obligation to give notice? The answer: It depends.
CPL article 190 governs grand jury proceedings, and CPL 190.50 specifically discusses the defendant testifying at the grand jury- The right to testify at grand jury is a statutory one. A defendant who is denied the right to testify may bring a motion to dismiss the indictment. The motion, under CPL 190.5O(5)(c), must be brought within 5 days of indictment arraignment or is waived.
The prosecutor has the obligation to notify the defense of the case being presented to the grand jury when the case is pending in local court (subd. 5(1)'s wording is "currently undisposed of felony complaint"). Thus, where the defendant is in custody awaiting a preliminary hearing the obligation to notify is on the DA. Even if the preliminary hearing doesn't go, and the defendant is out of custody, if the accusatory instrument is a felony complaint and the charge is still pending in local court, the DA must notify the defense of grand jury presentation. Handling a Criminal Case in New York (West 1999-2000), sec. 6:39.
However, once the case is out of local court and has been referred to the grand jury, the DA's notice obligation is over. At this point if the defendant wants to testify, it is defense counsel's obligation to serve written notice on the prosecution. People v Hodge, 246 AD2d 824, 667 NYS2d 812 (3rd Dept 1998) (PH held, defendant bound over; defense had obligation to notify); Handling, sec. 6.41.

Now, lets take this idea one step beyond. If the grand jury no bills, but the DA submits the case a second time - (It’s allowable) - is the DA required to notify the defense? No, according to People v Lennon, 223 AD2d 403, 636 NYS2d 334 (1st Dept 1996): the statute only refers to a "currently undisposed of case in local court The case here was well past that stage, thus a defendant in this situation who wanted to testify is S.O.L, as it were. Handling, Sec. 6:42.
Part of the confusion as to who must give notice maybe due to local practice in various counties. Some DA offices, perhaps out of an abundance of caution, always gives written notice of presentation, regardless of whether the case is pending locally. One negative result of this practice is that it may cause some defense attorneys to not give the required written notice of the defendant's intention to testify. And if the defense fails to give written notice when it is required, the defense has waived the right to testify at the grand jury; the 190.50(5)(c) motion is defective. People v Woodard, 197 AD2d 905, 602 NYS2d 262 (4th Dept 1992); People v Smith, 197 AD2d 411, 602 NYS2d 606 (1st Dept 1993), Handling, secs. 6:53-6:54.

One way for the defense to avoid the notice problem is to make a practice of serving the notice at the initial court appearance in local court Even if the defendant does not wish to testify (as is often the case), the right to testify is preserved and can be decided on at a later point. And, serving the notice gives the defense warning of when the grand jury presentation will occur. Also, in those situations where a case is no-billed, but could be re-presented, or where a case comes back from appeal and needs to be re-presented (Handling, 23:117), defense counsel, out of an abundance of caution, should give notice to the prosecution.

QUOTATION: "Keep strong, if possible. In any case, keep cool. Have unlimited patience. Never; corner an opponent, and always assist him to save his face. Put yourself in his shoes-so as to see things through his eyes. Avoid self-righteousness like the devil - nothing so self-blinding.” B.H. Liddell Hart, 1960

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