People v Trinidad
Annotate this CaseDecided on December 14, 2009
Supreme Court, Richmond County
The People of the State of New York
against
Luis Miguel Trinidad, Defendant.
220-2009
Leonard P. Rienzi, J.
Defendant moves to dismiss the indictment pursuant to C.P.L. §210.20 and §190.50 on the grounds that defendant was not afforded an opportunity to testify before the grand jury prior to their voting to indict him.
Defendant was arrested on July 15, 2009. He was arraigned in Criminal Court on July 16, 2009. The People served grand jury notice on defendant and defendant, in turn, served cross-notice of his desire to testify. On July 21, 2009, defendant withdrew his notice (see Judge Meyer's notation on court action record attached as People's exhibit). The case was presented to the grand jury, an indictment was voted, a Certificate of Indictment was filed and the case was transferred to the Supreme Court. Defendant's initial counsel was replaced by defendant's current attorney. On August 10, 2009, new counsel informed the People that defendant wanted to testify before the grand jury and faxed written notice to the prosecutor. After a discussion of possible appointment times to produce defendant to testify, the People informed defense counsel that defendant would not be produced because the jury had already voted to indict and the term was ending.
Defendant argues that he was entitled to testify because notice was sent in a timely fashion. Defendant cites two cases to support his contention that even after an indictment has been voted, but before it is filed, defendant should be given the opportunity to testify. In People v. Evans, 79 NY2d 407 (1992), three actions were consolidated and argued before the Court of Appeals. The Court held that individuals who give timely notice reasonably prior to the prosecutor's presentation of evidence and prior to the grand jury vote are entitled to testify before the vote. Defendant also cites People v. Young, 138 AD2d 764 (2d Dept 1988) to support his contention that even after the grand jury voted an indictment, a defendant who serves notice of his desire to testify should be given the chance to do so.
However, in neither of those two cases had any defendant withdrawn his cross-notice. The People cite People v. Domalevski, 157 Misc 2d 562 (Queens County Sup Ct 1993) where the court, faced with similar circumstances, held that the fact that the prosecutor had not filed the indictment after it was voted, and after defendant had initially withdrawn his desire to testify, and after defendant re-asserted his cross grand jury notice "is of no consequence in view of defendant's waiver of his right to testify after being afforded a reasonable and meaningful opportunity to do so." Id. at 565. The court stated "the People were entitled to rely upon defendant's representation" that he was withdrawing his notice. By doing so, "defendant waived his right to testify" [Id. p.564] "and his [*2]attempt to reassert such right is invalid under these circumstances". Id. At 563.
Whether or not the grand jury to which the People had presented their evidence has been"disbanded" is not relevant. The People provided defendant with a reasonable opportunity to testify. The defendant chose not to testify and the grand jury voted to indict. Under these circumstances, the People are not required to notify the grand jury that the defendant has "changed his mind." To require that defendant be allowed to testify at the conclusion of the grand jury's term, weeks after the People had presented their evidence and weeks after defendant had withdrawn his CPL 190.50 notice and specifically declined to testify, would provide defendant with an unwarranted procedural and strategic advantage not required by the statute. Such an unwarranted requirement would cause chaos at the conclusion of each grand jury's term as defendants who have withdrawn their CPL 190.50 notice, upon being notified that the grand jury has voted to indict and the case transferred to Supreme court, then "change their minds" and demand to testify prior to the filing of the indictment.
Defendant motion is denied in all respects.
This constitutes the decision, opinion and order of the court.
Dated:December 14, 2009
Staten Island, New York______________________________
Leonard P. Rienzi
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