Citation Numbers: 136 Misc. 2d 992
Judges: Fried
Filed Date: 7/31/1987
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
By this motion, timely filed within five days pursuant to CPL 190.50 (5) (c), defendant seeks an order unconditionally dismissing the instant indictment. He contends that because the People failed to provide him with notice that a Grand Jury proceeding against him was in progress, he was denied his right to testify before the Grand Jury. For the reasons set forth, the motion to dismiss is denied.
Meanwhile, the People, concerned that the defendant would be released pursuant to CPL 180.80, the case was presented to the Grand Jury on May 12, 1987, and an indictment was voted at 4:00 p.m. when the defendant was not arraigned. The defendant ultimately was arraigned on May 13, 1987, and the court was advised that the defendant had been indicted the previous day. Thus, notice pursuant to CPL 190.50 (5) (a) was not served.
Claiming that both his statutory and constitutional rights were violated, defendant seeks an outright dismissal of the indictment. At no time in his motion papers — either the original affirmation or the reply affirmation — or at any court appearance following submission of this motion, has defendant stated, or in any manner indicated, that he now wants to exercise his right to testify before a Grand Jury. In addition, he does not state that he would have testified in May 1987 before the original Grand Jury. Indeed, in his motion he argues that a conditional dismissal — a dismissal conditioned on the defendant actually testifying — is not authorized, citing the Second Department decision in Matter of Borello v Balbach (112 AD2d 1051 [2d Dept 1985]). I can only infer from this that the defendant does not intend to testify, did not so intend in May 1987, and is seeking merely to vindicate a right without availing himself of its purpose. (Cf., People v Laboy, 87 Misc 2d 449, and People v Walas, 80 Misc 2d 651.)
In the instant case, I believe that the correct procedure would have been to withhold a vote by the Grand Jury until after defendant’s arraignment: I do not believe a prosecutor should arrogate to herself, even after consultation with supervisors, the denial of the right to testify because of a concern
However, as indicated above, the right to testify before the Grand Jury, which is of course statutory and not constitutional, People v Galarotti (46 Misc 2d 871 [under Code Crim Pro]), serves to provide to an arrestee the absolute right to testify, on condition that proper notice is filed and a waiver of immunity is executed. This is to allow such person the right to place his own version of the events before the Grand Jury. This is a right that should be now vindicated only if the defendant intends to testify. To hold otherwise, and to dismiss the indictment would be to impose a drastic sanction for what, is at best, a technical violation of the Criminal Procedure Law.
Accordingly, the defendant’s motion is, in all respects, denied.