Opinion
October 1, 1992
Appeal from the Supreme Court, New York County (Phylis Skloot Bamberger, J.).
Consistent with the recent Court of Appeals decision in People v Oquendo ( 79 N.Y.2d 407), we find that defendant was denied a despite defendant's notice at arraignment of his intention to so testify, the prosecutor, prompted by CPL 180.80 considerations, obtained a vote on the charges but offered to reopen the case to allow defendant to testify. While People v Cade ( 74 N.Y.2d 410) may still permit the reopening of a case where the defendant belatedly asserts his statutory right to testify, People v Oquendo explicitly holds that a defendant who serves timely notice of his intent must be accorded the opportunity to do so before any vote is taken (79 N.Y.2d, supra, at 413). The People never disputed defense counsel's representations made in court as well as in the motion papers, that timely written notice was properly served at arraignment. With respect to the People's attempt to excuse the delay because of the arraignment court's misscheduling of the adjourned date, Oquendo also states that a failure to provide the defendant with an opportunity to testify before a vote is taken is not to be excused by "the practical difficulties the prosecution may encounter in satisfying its obligations under CPL 180.80" (79 N.Y.2d, supra, at 414).
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.