Opinion
1125/09.
Decided March 15, 2010.
MICHAEL C. GREEN, DISTRICT ATTORNEY, Sara VanStrydonck, Esq., Attorney for People.
DONNIE JACKSON, By: Paul J. Vacca, Jr., Esq., Attorney for Defendant.
Defendant moves this Court pursuant to CPL §§ 190.50(5) and 210.35(4) for an Order dismissing the within indictment on the grounds that his right to testify before the grand jury in this case was violated. Defendant also moves for an order of discovery, dismissal of the indictment due to a defective grand jury presentation and legally insufficient evidence, suppression of tangible evidence, and suppression of statements and identifications.
BACKGROUND
The Defendant was arraigned before the Hon. Stephen Miller of the Rochester City Court on December 1, 2009. At this proceeding, the Defendant was served in open court with a written notice that the matter would be presented to the grand jury on December 3, 2009. The notice specifically requested that if the Defendant wished to testify before the grand jury he must serve the District Attorney in writing by 9:00 am on December 3, 2009. Further, a preliminary hearing was scheduled to take place before Judge Miller on December 4, 2009 at 11:00 am.
As indicated by the People, the matter was presented to the grand jury on December 3, 2009 at approximately 1:30 pm. The affirmation of the Assistant District Attorney (hereinafter, "ADA") indicates that sometime after 11:00 am on December 4, 2009, she received a fax copy of a letter from Defendant's counsel time stamped "December 2, 2009" advising of his intention and desire to testify before the grand jury. It is the position of the District Attorney's Office and the ADA herein that consent for service of papers by electronic means was not given to Defendant to serve his demand. There is no evidence in this record to the contrary on this important point.
After receiving the fax, the ADA phoned Defendant's counsel and left a voice mail following up on this disputed request. The ADA avers that at the time she placed the call to defense counsel, it was her understanding that the grand jury had already voted a true bill and that the Defendant no longer wished to testify before the grand jury. The ADA further surmised that Defendant would make a motion to dismiss the indictment on the grounds that he was prevented from testifying before the grand jury.
DISCUSSION
Grand Jury Dismissal Motion Under CPL § 190.50
This Court agrees with the People that the Defendant's failure to serve timely and proper written notice of his intention to testify at grand jury is fatal to his claim for dismissal. See CPL § 190.50(5)(a). There is no dispute on this record that: 1. the Defendant was served in open court with a proper notice of the initial grand jury presentation; and 2. that the written notice of the kind specified in the statute was not properly served on the People.
Proper legal notice under CPL § 190 of a Defendant's intention to testify before the grand jury must be in writing. In the present matter, the Defendant's counsel admits only to "faxing" a written request to testify to the ADA assigned to the matter. This type of transmission, without prior consent of the People, does not satisfy the written notice requirement of CPL § 190. See People v. Smith, 16 Misc 3d 1125(A) (Monroe County Ct., March 5, 2007, Renzi, J.); People v. Welch, 190 Misc 2d 195 (Monroe County Ct., January 16, 2002, Marks, J.) (electronic mail notification by Defendant improper notice of intention to testify).
Defendant's failure to tender timely and proper written notice on these facts makes his request for relief without merit. The ADA made every reasonable effort to accommodate Defendant's inchoate request. The fact that the Defendant failed to perfect his proper written request does nothing to negate the legitimacy of the present indictment. For this Court to rule otherwise would be to countenance games of brinkmanship in relation to grand jury proceedings ( see People v. Crisp, 246 AD2d 84, 86 [1st Dept. 1998] leave denied 94 NY2d 946), which the Court will not do. A timely hand-delivered request would have sufficed to trigger the Defendant's right to testify. However, on this record, the Defendant's right to testify never accrued. People v. Stein, 306 AD2d 943 (4th Dept. 2003) leave denied 100 NY2d 599 (2003).
Motion for Discovery Under CPL § 240
The Defendant's motion for discovery as contained in his counsel's notice motion dated February 1, 2010 is granted insofar as it seeks materials previously ordered to be disclosed by the People in the Court's pre-trial order dated December 23, 2009. Discovery of any materials sought beyond the scope and four corners of the Court's pre-trial order is denied.
Motion for Inspection of Grand Jury Minutes
Defendant's request for inspection of the grand jury minutes is granted and the sufficiency of those minutes will be decided by separate decision and order.
Motion for Suppression of Tangible Evidence
The Defendant's motion for suppression of tangible evidence is denied as not sufficiently complying with the dictates of CPL § 710.20 and People v. Mendoza, 82 NY2d 415 (1993).
Motion for Suppression of Statements and Identifications
The Defendant's motion for Huntley and Wade Hearings is granted.
Renewal of Motions
The Defendant's request for renewal of motions is denied.
All other requests for relief are denied except as provided in other orders of this Court.
It is, therefore,
ORDERED that Defendant's motion to dismiss the indictment is denied in all respects; that Defendant's motion for discovery is granted as provided in this decision; that Defendant's request for suppression of tangible evidence is denied; that Defendant's request for a Huntley and Wade hearing is granted; and that Defendant's request for renewal of motions is denied.
This Decision shall constitute the Order of the Court.