Opinion
May 25, 1993
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
Although the defendant, subsequent to his arraignment, gave written notice pursuant to CPL 190.50 (5) (a) of his election to appear before the Grand Jury, the Grand Jury voted to indict him without having heard him testify in his own behalf; the defendant had been present at the courthouse as the Grand Jury considered the evidence in his case but was not brought from the holding area to the Grand Jury room. A defendant, such as the one at bar, who gives proper notice of his intention to appear before the Grand Jury, must be afforded the opportunity to give his or her testimony in advance of the Grand Jury's vote whether to indict (People v Evans, 79 N.Y.2d 407). That opportunity not having been provided the present defendant, his conviction must be reversed and the indictment dismissed (supra). As the Court of Appeals has recently observed in addressing circumstances not essentially different from those here at issue, "The failure of the Department of Correction to produce defendants provides no excuse or good cause for the District Attorney's failure to give effect to a properly invoked right under CPL 190.50 (5). Nor should we give legal effect to the practical difficulties the prosecution may encounter in satisfying its obligations under CPL 180.80" (supra, at 414).
Concur — Murphy, P.J., Milonas, Wallach and Kassal, JJ.