People v Nachum

[*1] People v Nachum 2016 NY Slip Op 51834(U) Decided on December 16, 2016 Supreme Court, Kings County Williams, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2016
Supreme Court, Kings County

The People of the State of New York

against

Yossef Nachum, Defendant



6565/2016



For the Defendant:

Levi Huebner & Associates, PC

535 Dean St., Suite 100

Brooklyn, NY 11217

By: Levi Huebner

For the People:

The Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

By: Janet Gleeson
Betty J. Williams, J.

The defendant, moves to dismiss the indictment pursuant to CPL §§190.50, 210.20(1)(c) and 210.35(4), alleging that the People failed to provide the defendant an opportunity to testify before the Grand Jury. The People oppose the defendant's motion. For the reasons that follow, the defendant's motion is denied.

A defendant's right to testify before the Grand Jury is clearly set forth in CPL §190.50(5). When a criminal charge against a person is being, or is about to be, 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 or any direction to file a prosecutor's information in the matter, 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); People v Jordan, 153 AD2d 263, 266 [2d Dep't], lv denied 75 NY2d 967 [1990]).

Upon receipt of notice of a defendant's intention to testify before a Grand Jury, the District Attorney must subsequently serve upon the defendant, at the address specified, a notice that the matter will be heard by the Grand Jury at a given time and accord the defendant a reasonable time to exercise the defendant's right to appear as a witness therein (Id; see also People v Jones, 126 Misc 2d 104, 105 [Crim. Ct. Kings Co. 1984]). Five days is a sufficient time period to comply with the notice requirements of CPL §190.50. (People v Ramrattan, 126 AD3d [*2]1013 [2d Dep't 2015]). However, deliberately improper conduct by a defense counsel to use the People's obligations under CPL §190.50 to as an opportunity for gamesmanship does not establish a violation of the People's obligations under CPL §190.50. (People v Watkins, 40 AD3d 290 [1st Dep't.], app denied 9 NY3d 870 [2007]).

The parties agree that (1) on July 29, 2016, the People provided written notice to the defendant and defense counsel of a Grand Jury presentment on August 3, 2016; (2) counsel for the defendant served written notice of the defendant's intention to testify; (3) that on August 3, 2016, in a room in the courthouse located at 320 Jay Street, a Hebrew interpreter was present with defense counsel, the defendant and two Assistant District Attorneys just prior to the defendant's testimony in the Grand Jury, and; (4) the Assistant District Attorneys were present for the translation of the Waiver of Immunity with the consent of defense counsel.

Levi Huebner, defense counsel, swears under penalty of perjury that during the translation of the Waiver of Immunity, defense counsel began to record the translation with a cellular telephone and continued to record despite the objections raised by an Assistant District Attorney. (Affirmation of Levi Huebner dated September 30, 2016, ¶19). Defense counsel also asserts that the supervising prosecutor arrived, refused to speak to defense counsel inside the room where the recording took place and insisted that the conversation be moved into the hallway and then the supervising prosecutor left with the unsigned Waiver of Immunity. (Affirmation of Levi Huebner dated September 30, 2016, Exhibit E). The defense posits that the People's actions prevented defense counsel from lawfully recording the translation of the Waiver of Immunity and ultimately prevented the defendant from testifying.

The People contend that the defense cannot record anywhere inside of the courthouse and that conditioning the translation of the Waiver of Immunity and conversations with the People on an improper right to record the communications was gamesmanship by defense counsel that deprived the defendant of the right to testify. Moreover, because of defense counsel's insistence on recording in the courthouse, the People had no alternative but to deny the defendant and defense counsel entry into the Grand Jury in order to preserve the statutory secrecy of the Grand Jury.

This court finds that the People properly provided written notice to counsel for the defendant of the Grand Jury proceeding five days before the Grand Jury presentment and thereby accorded the defendant a reasonable time to appear. (CPL §190.50; Jordan, supra; Jones, supra; People v Ramrattan, supra).

Audiotaping in a courthouse, including an office or hallway, at any time, is forbidden absent permission of the Chief Administrator of the Courts or a designee. (NYCRR §29.1[a]). Counsel for the defendant is perilously in error in the argument that the law permits recording of the Waiver of Immunity and conversations with the People inside of the courthouse. Defense counsel asserts the recording was necessary to preserve errors in translation of the Waiver of Immunity by the interpreter. However, in the same affirmation, defense counsel attaches the Criminal Court arraignment transcript where the defendant is arraigned without the use of an interpreter. (Affirmation of Levi Huebner dated September 30, 2016, Exhibit B). During the course to the Criminal Court arraignment the Defendant not only does not have an interpreter, but on six separate occasions the defendant affirmatively responds to understanding the Court's instructions. As evidenced by the defendant's own exhibit, the defendant clearly spoke and understood the English language at the defendant's Criminal Court arraignment on October 16, 2015.

During the next appearance on November 19, 2015, in Part AP1F, the defendant did not have an interpreter and the matter was adjourned to April 29, 2016. On February 18, 2016, the defendant appeared without an interpreter in Part AP1F. the felony charges were reduced to misdemeanors and the case adjourned to April 4, 2016 in Part AP2. On April 4, 2016, the defendant was in Israel and did not appear. A bench warrant was ordered and stayed, no interpreter was requested and the matter was adjourned to May 12, 2016 for hearings and trial. On May 12, 2016, the People were not ready for trial, the matter was adjourned to June 30, 2016, for hearing and trial and, once again, no interpreter was requested. On June 30, 2016, the People were not ready for trial, the matter was adjourned to July 25, 2016, for Grand Jury action and, once again, no interpreter was requested. Even though the matter was twice scheduled for a jury trial, the defense counsel did not request an interpreter until the time of the Grand Jury presentation. The first time defense counsel requested an interpreter was in an email sent to the People on July 29, 2016.

Defense counsel swears to purposely violating the rules of the Rules of the Court, (NYCRR 29.1[a]), to record the improper translation by an interpreter that was unnecessary for arraignment, court appearances, hearings and trial. (Affirmation of Levi Huebner dated September 30, 2016, Exhibit B). In light of the actions of the defense counsel in an admitted violation of the Rules of the Court by trying to record the interpreter and several Assistant District Attorneys in the courthouse, the People acted appropriately to maintain the secrecy of the Grand Jury by not allowing the defense counsel and defendant into the Grand Jury room. (CPL §190.25[4][a]).

The defendant right to testify before the Grand Jury was waived solely by defense counsel's attempts at gamesmanship. Specifically, the defendant did not request an interpreter (1) at arraignment, where the defendant affirmatively expressed an understanding of the Court's directives on six different occasions; (2) at the reduction of the felony charges to misdemeanor charges; (3) at the first date the case was scheduled for hearings and a jury trial; (4) at the second date the case was scheduled for hearings and a jury trial, and; (5) at the time the case was adjourned for Grand Jury action. While defense counsel is correct in arguing that an interpreter can be requested at any time, an interpreter cannot be requested in a blatant attempt at gamesmanship. (Watkins, supra). However, defense counsel's failure at gamesmanship does not rise to the level of ineffective assistance of counsel. (id. at 291).

Therefore, the defendant's motion to dismiss the indictment pursuant to CPL §§190.50, 210.20(1)(c) and 210.35(4) is denied.

It is also ORDERED that defense counsel is to preserve the original recording that is the subject of the instant CPL §190.50 motion and provide a copy of the complete recording, under seal, to the Clerk of the Kings County Supreme Court, Criminal Term to be maintained in the Court file, within seven (7) days of receipt of this decision.

The foregoing constitutes the decision and order of the court.

Dated: December 16, 2016

Brooklyn, New York

BETTY J. WILLIAMS, J. S.C.