Opinion
2623-18
02-22-2019
The PEOPLE of the State of New York, Plaintiff, v. Kenny URBAEZ, Defendant.
For the defendant, Martin Galvin, Esq., 903-F Sheridan Avenue, Bronx, NY 10451, 718-665-1800 For the People: A.D.A. Edward Christian Uy, Bronx County District Attorney's Office, 198 E. 161 Street, Bronx, NY 10451, 718-838-7507
For the defendant, Martin Galvin, Esq., 903-F Sheridan Avenue, Bronx, NY 10451, 718-665-1800
For the People: A.D.A. Edward Christian Uy, Bronx County District Attorney's Office, 198 E. 161 Street, Bronx, NY 10451, 718-838-7507
David L. Lewis, J.
This matter came before the Court in the Supreme Court Arraignment Part on January 2, 2019, for an arraignment on the instant indictment. In the course of the proceeding it emerged that there may have been a violation of CPL 190.50(5) by the office of the District Attorney.
The relevant facts come from the parties' filings, the transcript of the supreme court arraignment, and the transcripts of the proceedings in criminal court. The case was fully presented to the Grand Jury on November 19, 2018. They had voted an indictment of the defendant . Only after it was fully presented did the People serve CPL 190.50 notice at the defendant's criminal court arraignment on November 27, 2018. Mr. Urbaez was represented by the Bronx Defenders by Mr. Lemon-Strauss. The case was then adjourned to December 11, 2018, for Grand Jury action in Part FB.
Outside the presence of the defendant, in a written order, counsel for the defendant was assigned to represent the defendant on December 10, 2018, on the basis that the same defense counsel represented Mr. Urbaez in an older supreme court criminal case. (AT 11; Tr 12/11/18 p. 3) .
Pages in parentheses preceded by "AT" reference pages of the transcript of the Grand Jury proceeding; those preceded by "Tr" reference pages of the transcript from calendar appearances.
Defense counsel was not present on December 11, 2018, when Mr. Urbaez was produced before the criminal court. Mr. Lemon-Strauss of the Bronx Defenders appeared for him on that day and informed the criminal court judge that Mr. Urbaez was not happy with the defense counsel's representation of him. Mr. Urbaez was upset that the Bronx Defenders were relieved without his knowledge and suddenly this defense counsel was now his lawyer on this new case. Mr. Urbaez stated regarding defense counsel's representation of the prior case, "I'm already struggling with [defense counsel]. That's my concern. That's why I'm speaking up right now. I really don't want him to represent me. I'll get another lawyer but I don't want [defense counsel] to be my representative on this case." (Tr 12/11/18 p. 3).
Mr. Urbaez explained to the criminal court that he and the defense counsel were having "conflicting issues on that case already." (Tr 12/11/18 p. 4). He denied dissaatisfaction but insisted that they were in conflict as to how to proceed. Mr. Urbaez told the judge that he does not find it in his interest to have the absent defense counsel represent him in this case. The judge told Mr. Urbaez that the court needs the defense counsel to appear in court before some sort of determination can be made. The case was put over to the next day in Part FB.
But on the next day, Mr. Urbaez was never brought to the courtroom, even though he was in the courthouse. On that day, December 12, 2018, before a different criminal court judge, defense counsel appeared and waived Mr. Urbaez production and appearance. Thus, Mr. Urbaez's complaint as to defense counsel's representation and his statement and reasons why he did not want this defense counsel on his new case was never heard despite the judge's promise of the previous day.
The in courtroom assigned assistant district attorney was silent, even though the court file noted the defendant's statements of the previous day. The defense counsel did not indicate that there was any difficulties between the defendant and himself. The defense counsel said he spoke to the defendant in the lockup. The defense counsel only stated that Mr. Urbaez wanted to exercise his statutory right to testify before the Grand Jury. The court ordered Mr. Urbaez to be produced to the Grand Jury. The court then forthwithed the case to supreme court arraignments for January 2, 2019.
Late that day, Mr. Urbaez was brought to the Grand Jury room for the purpose of testifying in the Grand Jury pursuant to CPL 190.50(5). Both the defense counsel and the defendant entered the Grand Jury anteroom and met with the Grand Jury assistant district attorney. He asked defense counsel if his client wished to testify. The defense counsel answered that he did. The prosecutor asked Mr. Urbaez whether it was correct that he wanted to testify. Mr. Urbaez stated "Yes." (AT 2). Mr. Urbaez had executed the waiver of immunity immediately prior to the recorded colloquy in the Grand Jury anteroom.
Before the defendant testified, the Grand Jury assistant district attorney then moved to vacate the prior vote by which this same Grand Jury indicted the defendant. He then informed the Grand Jury that the defendant wished to testify. (Exhibit A, AT 4) . He then ruled that the November 19, 2018 vote of the Grand Jury indicting the defendant was vacated. This same Grand Jury, having already indicted the defendant, was asked to start again with no further instruction.
Mr. Urbaez entered the Grand Jury room. Defense counsel followed him in. Mr. Urbaez never sought to have defense counsel accompany him into the Grand Jury or represent him. In front of the Grand Jury, Mr. Urbaez took the oath and swore to tell the truth. He was asked to state his full name and address. He responded with, "Before I do that-" and immediately the prosecutor cut him off. (AT 6). Without knowing what the issue was, the prosecutor stated that he will have an opportunity to speak.
When Mr. Urbaez was asked if defense counsel is his attorney, he replied, "No sir." (AT 6). When asked who his attorney of record is Mr. Urbaez replied, "As of right now I don't think I have one. Yesterday I made a call (sic) court appearance which was adjourned [to] today." (AT 6).
The statement of the defendant properly reflects the statement he made in Part FB of the criminal court on December 11, 2018. The transcript of the proceedings before the criminal court shed light on Mr. Urbaez's answers to the questioning as to defense counsel by the Grand Jury assistant district attorney.
There is no indication that the Grand Jury assistant had any awareness of what transpired in open court the previous day. Equally, it appears he was not notified by the assistant district attorney in Part FB of the counsel issue, or looked at the criminal court file where it was noted by the judge on December 11, 2018.
Rather than seeking clarity, the assistant asserted his authority. The assistant responded, "Mr. Urbaez, at this time I am asking the questions. Do you know the name of your attorney of record?" The defendant answered "I don't have an attorney right now, sir." (AT 6). The assistant then turned to defense counsel and asked him in front of the Grand Jury if he is the attorney of record. Defense counsel said "Yes," thereby making it appear that the defendant was lying or trying to mislead the Grand Jury. Defense counsel answered despite knowing of issues between him and the defendant. Mr. Urbaez's response to defense counsel's assertion was immediate, "You not (sic) my attorney man, What's going on?" (AT 7).
The Grand Jury assistant ignored the exchange and then just moved on. He held up in front of the defendant Grand Jury Exhibit 4, the Waiver of Immunity, signed by Mr. Urbaez, and said to the defendant "Here you go. Hold on to that." (AT 7).
Questioned by the assistant, Mr. Urbaez acknowledged and identified his signature indicating that he swore to the waiver of immunity, Grand Jury Exhibit 4. The prosecutor moved Exhibit 4, the fully executed waiver of immunity of Mr. Urbaez, into evidence before the Grand Jury: "I submit Grand Jury 4 for identification into evidence as Grand Jury Number 4 as evidence the Grand Jury Waiver of Immunity, which the witness has signed." (Exhibit A, AT 7-8).
After it was placed in evidence, Mr. Urbaez acknowledged that he read the waiver before he signed it. But when the assistant asked, "Did you discuss the contents with your attorney?", Mr. Urbaez again asserted "That is not my attorney." (AT 8).
With the sworn signed waiver introduced into evidence, Mr. Urbaez had done everything required by the statute that would therefore mandate his testimony going forward. Instead the Grand Jury assistant district attorney insisted that Mr. Urbaez acknowledge that he discussed the waiver with defense counsel, before he signed it. He asked, "Did you discuss it with [defense counsel]?" The naming of the attorney elicited from the defendant an interruptive answer of "No." (AT 8). This interruption by Mr. Urbaez was the sole moment of his not being polite to the prosecutor during the entirety of the Grand Jury appearance.
Mr. Urbaez answered that defense counsel instructed him to read it just before they went into the Grand Jury anteroom. Mr . Urbaez testified that defense counsel only told him that if he did not sign it then he could not testify in the Grand Jury. Mr. Urbaez did not consider that a discussion. He stated that they had no conversation pertaining to the details of the document. Mr. Urbaez testified, "So I signed it just right now." (AT 8).
Viewing the answer in light of the transcripts of the criminal court proceedings, Mr. Urbaez's answers were truthful. In response, the Grand Jury assistant unilaterally removed Mr. Urbaez from the Grand Jury room. The assistant told the Grand Jury that the defendant, the defense lawyer and the court officers were exiting to discuss the waiver. Mr. Urbaez stated at the time of exiting "This is not my lawyer." (AT 9).
When Mr. Urbaez returned to the Grand Jury room, inexplicably there was now an additional court officer and an additional assistant district attorney. No instruction was given that no inference should be taken from the addition of an additional court officer and prosecutor.
Upon his return to the Grand Jury, when asked again whether defense counsel, seated next to him, was his attorney, Mr. Urbaez again said that he was not. The record reflects that Mr. Urbaez then politely asked the assistant, "May I have the opportunity to clarify that, not just for yourself, but for the Grand Jury?" The assistant was having none of it. He asked again word for word, whether "[Defense counsel], seated next to you", was his attorney. The defendant answered, "That's not the lawyer that I appointed to myself and that was appointed to me by the government initially, no.", referring to the Bronx Defenders who represented him in criminal court. Mr. Urbaez continued, "This is his first appearance on this court case. Me and him do not have any familiarity on the particulars of this case from prior at all. He appeared just now. He don't- I don't even know if he has any type of knowledge fully of this case and I'm trying to explain that to you all." (AT 9-10).
In response, the assistant as if he was conducting a cross examination of a lying witness, asked again, word for word, if defense counsel was his attorney. The defendant again, not surprisingly, said "No." (AT 10).
At this point the assistant announced that "Since you are saying that [defense counsel] is not your attorney, we cannot continue with your testimony." (AT 10). Mr. Urbaez asked, "So how would that result?" (AT 10). Ignoring the question, the prosecutor asked if defense counsel was his attorney.
"He is not my attorney, sir." was the answer. (AT 10). The assistant then unilaterally ruled, "At this time we cannot continue with your testimony and you are excused from the Grand Jury chamber." (AT 10). There was no indication that the Grand Jury had an input into this determination. Mr. Urbaez had not even been allowed to begin his testimony. The defendant was returned to custody.
Outside the presence of the defendant and outside the presence of the Grand Jury, the assistant made his record. He stated, "As was evident from the record the defendant refused to acknowledge Mr. [defense counsel] is his attorney even though he was assigned by the Court", ignoring Mr. Urbaez's objection in the Grand Jury to this particular defense counsel representing him. (AT 10-11).
The assistant also put on the record that defense counsel represented Mr. Urbaez in another case. The assistant either did not know that Mr. Urbaez was dissatisfied with defense counsel's representation in the other case or ignored any information he had gotten about the defendant's statements on the record in Part FB on December 11, 2018. Defense counsel too stood silent despite his awareness of the defendant's dissatisfaction with him. The prosecutor claimed that defense counsel had the opportunity to consult with the defendant before being produced in the Grand Jury room to testify, even though the defendant testified under oath to the contrary. In fact there was no way the assistant could make such a statement from personal knowledge. The Grand Jury assistant then stated, "Because the defendant refused to acknowledge [defense counsel] as his attorney his testimony ceased and he was excused." (AT 11).
Defense counsel noted it was almost 6:30 pm. He asked the assistant to arrange for the defendant to be produced the next day, a Thursday, in order that he have another lawyer appointed for him. He asked the prosecutor to make a good faith effort to try to get the defendant produced because there were still two more days of the term of this Grand Jury. (AT 11-12). There was no answer on the record.
Defense counsel asked the assistant what they were going to do. He said, "I will talk to my boss, let you know tomorrow." (Tr 1/2/19 p. 4). The assistant district attorney informed the defense lawyer that his boss said to take a vote and quoted the supervisor as saying, "He had his chance." (Tr 1/2/19 p. 4). The People did not seek guidance from the empaneling judge either that evening or the next day.
The assistant district attorney committed legal error. The prosecutor in effect ruled that Mr. Urbaez first had to testify that day and second that he must do so with defense counsel as a counsel forced upon him. The assistant district attorney and his supervisor conditioned Mr. Urbaez's right to testify solely upon the defendant's acceptance of a lawyer, which the prosecutor knew that the defendant did not want representing him in this very case.
After Mr. Urbaez initially balked at defense counsel representing him, there was no discussion of the fact that the prosecutor and the defense counsel could appear before the supervising Grand Jury judge, and a determination as to whether new counsel should be appointed. Instead, the prosecutor put Mr. Urbaez right back in the Grand Jury to repeatedly ask the same question and unsurprisingly get the same answer.
The defendant was indicted on December 14.
At the supreme court arraignment on this indictment, Mr. Urbaez indicated that he wanted new counsel. He stated that the last appearance he had in his case was actually at the Grand Jury. It was there just before going into the Grand Jury that he learned of defense counsel's appointment to represent him in this case. The defendant indicated that he and his counsel were not in a position where the defendant felt that counsel was understanding what the defendant was trying to accomplish (Tr 1/2/19 p. 2-3). The defendant did not know that the Grand Jury went forward to indict him a second time.
The Court relieved defense counsel and appointed a successor counsel who made the instant motion to dismiss. The People's papers in response were timely filed on January 28, 2019.
THE PEOPLE'S POSITION
In their answer to this motion, the People seek to justify depriving Mr. Urbaez of his statutory right to testify because the defendant repeatedly refused on two separate occasions, albeit within moments of each other, to "simply acknowledge that [defense counsel was] the defendant's attorney of record" and that this "prevented the defendant from submitting to the grand jury waiver of immunity which CPL 190.50(5)(b) and CPL 190.45(2) require before the defendant is permitted to testify." (People's Response, p.4).
This claim of prevention of submission of the waiver of immunity is patently false.
The Grand Jury minutes demonstrate that the defendant's waiver of immunity was already signed and sworn to, and introduced as Exhibit 4 into evidence before the Grand Jury by the assistant even after Mr. Urbaez refused to accept defense counsel as his lawyer the second time.
CONCLUSIONS OF LAW
The indictment is hereby dismissed on the basis that the defendant's right to testify under CPL 190.50(5) was improperly barred by the assistant district attorney, and thus impaired the integrity of the Grand Jury proceeding.
Once the defendant executed the Waiver of Immunity, sworn to and entered into evidence before the Grand Jury, the prosecutor's unilateral removal of Mr. Urbaez from the Grand Jury room and barring him from offering any testimony violated CPL 190.50(5). The prosecutor in this unique set of circumstances, with two days left in the Grand Jury's term, should have taken the matter before the supervising judge who impaneled the Grand Jury that night or the following day. The prosecutor, by preventing the defendant from testifying without defense counsel, failed to allow the defendant a reasonable or a meaningful opportunity to testify before the Grand Jury. People v. Shemesh , 51 AD3d 239, 242 (1st Dept), affd 11 NY3d 774 (2008). There is no authority for the proposition that a defendant who executes a waiver which is presented to the Grand Jury and acknowledges such waiver, must then as an additional condition of being able to testify acknowledge the lawyer assigned to him. The prosecutor's imposition of this additional hurdle to the defendant's exercise of the statutory right has no legal basis and deprived the defendant of his right to testify.
THE APPLICABLE LAW
This matter is governed by the relevant statutes under Article 190 of the Criminal Procedure Law. The first is the statutory right of a defendant to testify before the Grand Jury, upon timely notice to the People, found in CPL 190.50(5). The second statutory provision is the requirement that a defendant who seeks to exercise his statutory right to testify must sign and execute a waiver of immunity before the Grand Jury to allow his testimony under CPL 190.45. Finally, the law accords to a defendant who wishes to testify the right to counsel, which is a right that is solely the defendant's to invoke or waive, not the prosecutor's. CPL 190.52.
THE RIGHT OF THE DEFENDANT TO TESTIFY
It is well settled that a defendant's statutory right to testify before the grand jury " ‘must be scrupulously protected.’ " People v. Smith , 87 NY2d 715, 721 (1996), quoting People v. Corrigan , 80 NY2d 326, 332 (1992). When a criminal charge against a person is being or has been submitted to a Grand Jury, such person has a right to appear before such Grand Jury as a witness in his own behalf if, prior to the filing of any indictment, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. CPL § 190.50(5). "Upon appearing at such time and place... such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration." CPL 190.50(5)(b).
The purposes underlying the statute protect defendant's statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury's consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution. The District Attorney has no correlative right to control or restrict the exercise of the right. The defendant's appearance before a Grand Jury is the singular incursion on the prosecutor's otherwise exclusive stronghold. People v. Evans , 79 NY2d 407 (1992).
The statute requires that the People give the defendant a "reasonable time to exercise his right to appear as a witness" before the Grand Jury. CPL 190.50(5)(a). Where the People are required to provide notice of a prospective Grand Jury proceeding, they must afford the accused "reasonable time" to exercise the right to testify before said Grand Jury, which contemplates the right to obtain counsel. CPL 190.50(5)(a). The "reasonable time" concept is not subject to rigid analysis. Rather, it is measured in relation to the particular facts of the individual case. People v. Jordan , 153 AD2d 263, 266 (2nd Dept), lv denied 75 NY2d 967 (1990). Simply stated, the notice of Grand Jury presentment "must be reasonably calculated to...permit (the accused) to exercise his right to testify." People v. Sawyer , 274 AD2d 603, 605 (3rd Dept 2000), affd 96 NY2d 815 (2001). The right to testify includes the right to obtain counsel.
Once the issue arose as to Mr. Urbaez's counsel, with two days before the term was to expire, it would be consistent with the requirement of reasonableness of time to exercise the right to testify to have a court resolve the issue of counsel the next day, given that the assistant district attorney truly believed that the defendant could not testify without acknowledging counsel, rather than unilaterally terminate his testimony with the determination by an unnamed assistant district attorney supervisor that the defendant had "had his chance."
This type of matter is the kind that should be resolved not by a prosecutor's supervisor but by the court as the supervising entity over the Grand Jury. The criminal procedure law designates both the District Attorney and the court as legal advisors to the Grand Jury (see CPL 190.25(6) ). Indeed the prosecution's frustration with Mr. Urbaez in his persistence regarding his representation required him to take the matter to the supervising judge for a ruling. See e.g. People v. Ianniello , 21 NY2d 418, 425 (1968) ; People v. Ward , 37 AD2d 174, 177 (1st Dept 1971).
Because Grand Jury proceedings are conducted by the prosecutor alone, this function confers upon the prosecutor broad powers and duties, as well as wide discretion in presenting the People's case. See People v. Di Falco , 44 NY2d 482, 487 (1978). In addition to providing legal instruction to the Grand Jury, the District Attorney determines what evidence to present to that body and what evidence should be excluded. Di Falco , 44 NY2d at 486-487.
The prosecutor's discretion during Grand Jury proceedings, however, is not absolute. As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus "charged with the duty not only to secure indictments but also to see that justice is done...." People v. Lancaster , 69 NY2d 20, 26 (1986 ) ; see also People v. Pelchat , 62 NY2d 97, 105 (1984). With this potent authority, moreover, comes responsibility, including the prosecutor's "duty of fair dealing...." Pelchat , 62 NY2d at 104. These duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion. Di Falco , 44 NY2d at 487 ; People v. Huston , 88 NY2d 400, 406 (1996).
Prosecutorial discretion is not absolute or final and the ‘duty of fair dealing’ in Grand Jury proceedings owed to a potential accused is a right and protection afforded through appropriate judicial oversight of the Grand Jury process regarding issues of counsel and representation.
The assistant district attorney forced the defendant to pick between the actual right to have an attorney appointed for him, as opposed to forced on him, and only then on that condition would he be permitted to exercise his legal right to testify in the Grand Jury. Given that there was yet at least one more day before the term of the Grand Jury expired, the People's failure to resolve the issue of counsel, which they assert as intrinsic to the right to testify, by presenting the issue to the supervising judge, effectively denied the defendant a reasonable opportunity to testify.
The People failed in their papers to establish why on the day of these events the defendant could not have been assigned a new lawyer. Defense counsel was given only a day to confer with Mr. Urbaez. Mr. Urbaez expressed his dissatisfaction with defense counsel on his other case to the criminal court judge who was powerless to relieve defense counsel in the open supreme court case. Thus the People's reliance on defense counsel's prior representation appears to be deliberately asserted wholly out of context.
The District Attorney cannot, consistent with observation of the law and its obligation and responsibility placed upon it to conduct the Grand Jury process fairly, use the statutory right of a defendant to prevent his testimony. Here, the District Attorney's acts, not the defendant's, prevented the fulfillment of the rights of the defendant under the law.
PEOPLE v. DUNN IS WHOLLY INAPPLICABLE TO THIS CASE
The prosecution claims that it was the misconduct of the defendant that precluded his testimony, citing People v. Dunn , 248 AD2d 87 (1st Dept 1998). The People cite no other case allowing them to deny the defendant his right to testify. The misconduct alleged is Mr. Urbaez's failure to acknowledge that defense counsel was in fact his attorney of record as articulated in the Grand Jury minutes.
The People's claim is belied by the record and grossly misrepresents it. Mr. Urbaez was polite, courteous and explained his position. Defense counsel was not, as far as the defendant necessarily knew, his "attorney of record", given that defense counsel had not been in court the previous day. The lawyer was assigned by the court without notice to the defendant who had been represented on this case by the Bronx Defenders. The District Attorney in removing the defendant from the Grand Jury room punished Mr. Urbaez by forfeiting Mr. Urbaez's right solely for stating what he believed was in fact a truthful, albeit ignorant answer.
The prosecutor in conducting the Grand Jury must conduct the proceeding in a manner fair both to the People and the accused. Dunn , 248 AD2d at 94. In this matter it was the prosecutor who obdurately repeated the same question, refusing to accept the defendant's answer as to counsel, returning to it even after placing Mr. Urbaez executed waiver of immunity into evidence.
The Court finds that it was the misconduct of the People who deprived the defendant of his right. Denying defense counsel three times does not deprive the defendant of his rights under the CPL Article 190. The assistant district attorney had a waiver signed and executed and placed before the Grand Jury. He should have proceeded either to take the defendant's testimony, or sought the advice of the empaneling judge, not his supervisor or as is done when the District Attorney has a witness they want to have representation asked for the appointment of counsel from the 18B panel .
In Dunn , the defendant, Willie Dunn, a veteran of Grand Jury appearances, acted obstreperously. In diametrically opposed contrast, Mr. Urbaez followed the prosecutor's directions. Dunn ignored numerous directives to confine his testimony. Mr. Urbaez never even got to provide any testimony. Dunn's appearance before the Grand Jury was contentious. Mr. Urbaez was not contentious.
Except for a single interruption, Mr. Urbaez was perfectly behaved in all respects. While Dunn's behavior was detrimental to the process, Mr. Urbaez was the exact opposite. Mr. Urbaez was in no way obstreperous. He was respectful, referring to the prosecutor as "Sir" in answering his questions. He was not evasive or dilatory. But he was firm. He merely did not want defense counsel as his lawyer in this matter . He wanted to testify alone, without counsel.
Dunn holds only that a prosecutor acting in his quasi-judicial role before the Grand Jury should have the right to exclude a defendant witness who repeatedly refuses a direction to confine his testimony to the facts of the incident in question. Dunn allows exclusion and termination of the defendant's testimony in the Grand Jury as a forfeiture of the right to testify. There was no basis for the People to determine that Mr. Urbaez "forfeited" his right to testify.
In citing only one case to this Court, the People appear to ignore an entire line of cases that fully flesh out when the right can be forfeited. No case supports their position. The failure to cite the Court to and discuss the greater body of law on this issue including from the Court of Appeals casts doubt on the People's position.
The right to testify is not violated when a defendant forfeits it by the tactical choices, misconduct or ill conceived antics or shenanigans. A defendant's statutory right to testify is not violated where his failure to testify is due, inter alia, to his own refusal "to be produced" ( People v. Harris , 257 AD2d 410 (1st Dept 1999) ); his own absconding ( People v. Turner , 227 AD2d 120 (1st Dept 1996) ); his own choice "not to testify" after he was informed that he would not be permitted to change into street clothes prior to his appearance before the grand jury ( People v. Buccina , 62 AD3d 1252, 1254 (4th Dept), lv appeal denied 12 NY3d 913 (2009) ); or his own choice not to testify because he "was too tired" and uncomfortable to do so ( People v. Sawyer , 274 AD2d 603, 605-606 (3rd Dept 2000), affd 96 NY2d 815 (2001) ). See also People v. Brumfield , 109 AD3d 1105 (4th Dept. 2013), affd 24 NY3d 1126 (2015).
A defendant was properly prevented from testifying only when his behavior before the Grand Jury was "seriously disruptive and abusive conduct which raised safety concerns." People v. Culbert , 136 AD3d 609 (1st Dept), lv appeal denied 27 NY3d 1067 (2016). A defendant can be prevented from testifying when he is unruly, volatile and engaged in physically menacing behavior before the grand jurors such that he was removed and defense counsel sought a psychiatric evaluation. See People v. Johnson , 128 AD3d 412 (1st Dept 2015), lv appeal denied 27 NY3d 999 (2016). Equally, in People v. Davis , 287 AD2d 376 (1st Dept), lv appeal denied 97 NY2d 680 (2001), the defendant was barred from testifying as a result of his abusive conduct toward, and failure to cooperate with, each of the two successive attorneys that were assigned to him at the Grand Jury stage. Davis, unlike Mr. Urbaez, was abusive to the counsel appointed to him. This line of cases implicates behavior so different from that of Mr. Urbaez and demonstrates that the prosecutor's legal argument is unavailing.
WAIVER OF IMMUNITY
The District Attorney claims that there was no valid waiver of immunity executed so as to permit Mr. Urbaez's testimony. This representation to the Court is patently incorrect.
CPL 190.45(1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the Grand Jury stipulates that he or she "waives (the) privilege against self-incrimination and any possible or prospective immunity to which he (or she) would otherwise become entitled, pursuant to (CPL) 190.40, as a result of giving evidence in such proceeding." The People were aware that the waiver was first executed by Mr. Urbaez in defense counsel's presence, even though Mr. Urbaez did not want that defense counsel's services, and was brought by the People into the Grand Jury.
Mr. Urbaez signed a waiver of immunity form that complied with the requirements of CPL 190.45(1). The defendant subscribed to the waiver and swore to it before the Grand Jury, where it was entered into evidence as Exhibit 4. Subscribing to and swearing to the waiver before the Grand Jury are distinct acts that must occur for there to be a valid waiver. People v. Stewart , 92 NY2d 965 (1998). Both acts were done by Mr. Urbaez. The prosecutor was therefore required to allow Mr. Urbaez to testify before the Grand Jury. CPL 190.50(5)(b). The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.
The People refused to allow the defendant to testify after he fully executed and swore to the requisite statutory waiver in front of the Grand Jury. There is simply no additional legal requirement under CPL Article 190 that the defendant must accept the attorney forced upon him in order to testify in the Grand Jury. The statute on its face demonstrates the erroneous nature of the prosecutor's position.
Mr. Urbaez having executed the waiver and swore to it in front of the Grand Jury had the absolute right to testify before the Grand Jury, without as an additional extra-legal impediment erected by the District Attorney - the requirement that he accept a particular attorney as his counsel in front of the Grand Jury. Mr. Urbaez was only required to meet the requirements of the statute, and nothing more, to make a valid written waiver of immunity
The District Attorney's interpretation flies in face of the Court of Appeals decision in People v. Brumfield , 24 NY3d 1126 (2015), which controls this matter on these facts. Brumfield precludes the People from adding any additional non-statutory burden to the defendant's right to testify in the Grand Jury. In Brumfield , the People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. Defendant struck out those three additional provisions and signed the form. The assistant district attorney advised the defendant and counsel that unless defendant signed an unaltered waiver of immunity, defendant would not be permitted to testify. Defendant did not sign the unaltered form, and he was barred from testifying. The Brumfield court held that the defendant's statutory right to testify before the Grand Jury was violated. This right must be scrupulously protected.
Once Mr. Urbaez signed a waiver of immunity form that complied with the requirements of CPL 190.45(1), he was by law required to be permitted to testify before the Grand Jury (see CPL 190.50(5)(b). There is simply no additional legal requirement under CPL Article 190 that the defendant must accept the attorney forced upon him in order to testify in the Grand Jury. The statute on its face demonstrates the erroneous nature of the prosecutor's position.
PRIOR REPRESENTATION BY DEFENSE COUNSEL
The People also assert that because defense counsel represents Mr. Urbaez in an earlier open supreme court case, then Mr. Urbaez's lawyer had to be the same defense counsel. The fact of prior representation does not alter the issues in this case. Here the People sought to force Mr. Urbaez to accept and acknowledge defense counsel as his counsel and continue with him in this new case.
This requirement was imposed on Mr. Urbaez to the point of ignoring his protest before the Grand Jury, after the waiver of immunity was entered into evidence. Once Mr. Urbaez expressed dissatisfaction with his counsel to the Grand Jury alone, the matter was beyond the power and authority of the office of the District Attorney to ignore in its role in conducting of the Grand Jury.
Thus the fact that defense counsel represented Mr. Urbaez as a basis for the People's action is rejected. Having gone so far to learn that fact, they failed or are concealing the fact of Mr. Urbaez's on the record declaration of not wanting this particular defense counsel due to conflicts as his counsel in this matter. In light of the record in criminal court of those two days in December, the People's assertion that defense counsel represents Mr. Urbaez without any mention of the defendant's on the record comments is downright disingenuous.
Mr Urbaez's answers to the Grand Jury assistant were the consequence of the criminal court's unfulfilled promise to Mr. Urbaez on December 11 that the issue of counsel would be taken up on the 12th. As far as Mr. Urbaez knew, that issue that he raised was still pending. Significantly, a representative of the District Attorney was also in court when the issue was raised. Thus the District Attorney's office had constructive knowledge of the conflict between the client and counsel. The Grand Jury assistant is part of the office and whether or not any prosecutor deigned to inform him or he deigned to inquire, the office is still bound to the knowledge of what occurs in cases it controls. The People are charged with knowing what occurs in its prosecutions when it is placed on the record in the courtrooms where they announce their appearance for the District Attorney.
When it comes to the legal rights of the defendant under CPL 190.50(5), no claim of non- communication by members of the office of the District Attorney can be tolerated. Courts should not give legal effect to any practical difficulties the prosecution encounters that are created by their failure to communicate matters before a court so as it eludes its legal obligations.
But even if this Court were to conclude there was no constructive knowledge, the statement of the defendant in the Grand Jury was not a reason to deprive him of the right to testify but rather required resolution by the court in its role of supervising the Grand Jury as an arm of the court that impaneled it CPL 190.05. People v. Ianniello , 21 NY2d 418, 423-424 (1980).
At the outset, it is basic that to force a lawyer on a defendant can only lead him to believe that the law contrives against him. Faretta v. California , 422 US 806, 834 (1975). Matter of Abrams v. Anonymous , 120 Misc 2d 134 (Sup Ct, NY County 1982), affd as mod 62 NY2d 183 (1984), examined the issue of conflicts in defense attorney representation. It stated that "[t]he Sixth Amendment right to the ‘effective assistance of counsel’ implies that a witness enjoying the advice of counsel necessarily enjoys counsel of his choice. ‘To impose counsel upon a witness against his will or arbitrarily to forbid him retaining a particular attorney unnecessarily obstructs his ability to enter private contractual arrangements for representation and would deprive him of his constitutional right to due process.’ " Matter of Abrams , 120 Misc 2d at 141 (citations omitted).
The right of an indigent criminal defendant to the services of a court appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option. See People v. Sides , 75 NY2d 822, 824 (1990) ; People v. Sawyer , 57 NY2d 12, 18—19 (1982) . It is incumbent upon a defendant to show good cause for the requested substitution. Sides , 75 NY2d at 824 ; People v. Medina , 44 NY2d 199, 207—208 (1978). Mr. Urbaez showed good cause but no one was listening.
In this matter the People breached the statutory command governing their authority and illegally forfeited the defendant's right to testify.
THE RIGHT TO COUNSEL IS NOT A SWORD
The defendant's sworn statement to the Grand Jury that defense counsel told him that he could not testify unless he signed the waiver was all the legal counseling Mr. Urbaez got and wanted from defense counsel. Mr. Urbaez never sought to have defense counsel accompany him into the Grand Jury. That appears to be the idea of the defense counsel and the prosecutor.
The enactment of a right to counsel in the Grand Jury was designed to provide a measure of fairness to witnesses testifying before grand juries. Governor's Memorandum on Approval of Ch. 447, NY Laws (June 19, 1978), reprinted in (1978) NY Laws A-285 (McKinneys).
A defendant can appear in the Grand Jury room without counsel. It is the defendant's right to exercise or to forego, not the District Attorney's. The right is not enforceable by a prosecutor against a defendant to prevent him from testifying. The People cannot under the terms of the statutes applicable herein demand that as a condition of the exercise of the statutory right that the defendant must accept the lawyer as his lawyer or lose the right to testify.
Mindful that CPL 190.52, the right to counsel in a Grand Jury room, is designed to provide protection for a defendant, Mr. Urbaez's refusal to acknowledge defense counsel as his lawyer should have only resulted in the exclusion of defense counsel from the Grand Jury room while Mr. Urbaez testified, which would have been fine with Mr. Urbaez. Here the People presented the defendant with an illegal condition on the exercise of his right.
Ironically to adopt the prosecution's position means that only a defendant represented by an attorney can legally testify in the Grand Jury, thereby perverting the purpose and language of CPL 190.52, the basis for the right. Even as the legal advisor to the Grand Jury, the prosecutor cannot prevent self representation by the defendant who rejects the appointed lawyer.
It is true that significant prejudice could result from Grand Jury testimony following a waiver of immunity and a person's legal rights may be critically affected by a grand jury proceeding. See People v. Ianniello , 21 NY2d 418, 424 (1968). However no law prohibits a defendant to reject the offer of counsel and take the same chances as when he waives his rights under Miranda v. Arizona 384 US 436 (1966).
REMEDY
The protection of the right to testify is incumbent on the Court. The courts have a responsibility to prevent unfairness in Grand Jury proceedings and insure that the Grand Jury remain independent and become an adjunct of the office of the District Attorney. People v. LaTorre , 162 Misc 2d 432, 434 (Crim Ct, Kings County 1994).The Grand Jury acts as a buffer between the state and its citizens by shielding individuals from unfounded prosecutions. People v. Huston , 88 NY2d 400 (1996). Absent a breach of a statutory command or some indication of likely prejudice, there is no legal basis for interfering with the prosecutor's prerogatives in determining the manner in which a Grand Jury presentment is made.
CPL 190.50(5)(c) provides that where an indictment is obtained or filed in violation of CPL 190.50(5)(a) the resulting indictment is "invalid and, upon a motion made pursuant to section 210.20, must be dismissed." CPL 190.50(5)(c). If the People violate the defendant's right to testify in the Grand Jury, the statute creates a "ministerial duty on the part of the court to dismiss an indictment." Matter of Borrello v. Balbach , 112 AD2d 1051, 1052 (2nd Dept 1985) ; People v. Massard , 139 AD2d 927 (4th Dept 1988).
Courts are statutorily and precedentially authorized to dismiss indictments for overzealous violation of this correlative value when a prosecutorial presentment fails to conform to the requirements of CPL article 190 "to such a degree that the integrity thereof is impaired and prejudice to the defendant may result." People v. Adessa , 89 NY2d 677, 687 (1997).
This Court concludes that the defendant complied with the requirements of CPL 190.50(5), but was denied his right to testify before the Grand Jury. The barring of the defendant from testifying impaired the investigating functions of the Grand Jury. CPL 190.05 ; People v. Adessa , 89 NY2d 677, 682. The integrity of the Grand Jury was also impaired. Dismissal of the indictment is specifically mandated by CPL 210.35 (5), when prejudice to the defendant may result. The statute does not require a showing of factual prejudice which is present herein, but only a reasonable likelihood of or at least potential for prejudice. People v. Adessa , 89 NY2d at 686 ; People v. Huston , 88 NY2d at 409.
Leave is granted to the People to re-present this matter to another Grand Jury.
This constitutes the decision and order of the Court.