People v Agnew
Annotate this CaseDecided on December 2, 2021
Supreme Court, Kings County
The People of the State of New York,
against
Joseph Agnew, Defendant.
Index No. 72982-2021
Brooklyn Defender Services, Brooklyn (Benjamin W. Wittwer of counsel), for defendant.
Eric Gonzalez, District Attorney, Brooklyn (Winnie Choi of counsel), for the People.
Heidi C. Cesare, J.
Defendant moves to dismiss the indictment on the ground that he was denied his right under CPL 190.50 to testify at the grand jury (see CPL 190.50 [5] [a]; 210.20 [1] [c]; 210.35 [4]). The motion is granted, and the indictment is dismissed, with leave to the District Attorney to resubmit the case to another grand jury within 45 days from the date of this decision and order.
BACKGROUND
Based upon the motion papers submitted, this court finds the following facts and relies upon them to grant the defense motion.
On September 13, 2021, defendant was arraigned on a felony complaint that charged him with criminal possession of a weapon in the second degree and other offenses. The District Attorney served written CPL 190.50 notice that the case would be submitted to the Grand Jury and stated that defendant was scheduled to testify on "TBA (180.80 date)" (District Attorney's "Criminal Procedure Law § 190.50 Notice to the Defendant and Defendant's Attorney"). Defendant served written reciprocal notice of his intention to testify at the grand jury. The court set bail and the case was adjourned to September 17, 2021, which was "the 180.80 date."
On September 17, 2021, defendant was incarcerated and not produced for the calendar call. Defense counsel reaffirmed that defendant intended to testify at the grand jury. During the remainder of the day, defense counsel communicated with the ADA to reaffirm that defendant intended to testify at the grand jury.
By 4:00 p.m., defendant still had not been produced. The ADA called defense counsel and stated that defendant would be produced and "directed her to come to 320 Jay Street by 4:30 p.m." Defense counsel stated that she had spoken "with Corrections" and learned that "no one was produced." She stated that she would not go to the courthouse until she knew defendant was present.
At 4:30 p.m., the ADA called defense counsel and stated that "another bus" from Rikers would be arriving "soon" and told her to come to the courthouse. Defense counsel agreed and stated that she would speak with defendant and prepare him to testify. The ADA stated that he would wait to hear from defense counsel about whether defendant would testify and "reserve a spot for him." Defense counsel waited until the Department of Corrections confirmed that defendant had been produced, which "was at 5PM."
At 5:05 p.m., defense counsel had not arrived at the courthouse.
At 5:15 p.m., defense counsel was still not present at the courthouse, at which time the ADA "voted out" defendant's case in Jury B, Term 10.
At 5:15 p.m., the ADA called defense counsel, who was on the subway, and stated that the case had been voted out.
At 5:30 p.m., defendant arrived at the courthouse.
At approximately 6:30 p.m., defense counsel spoke to the ADA, who stated that a supervisor had "told him to vote the case out."
LAW
The Criminal Procedure Law defines a defendant's right to testify at the grand jury (see CPL 190.50). The defendant must serve upon the District Attorney written notice that contains a request for an opportunity to testify at the grand jury and an address to which communications may be sent (CPL 190.50 [5] [a]). Upon receipt of that written notice, the District Attorney must "accord the defendant a reasonable time to exercise his right to appear as a witness therein" (id.). The District Attorney also must "serve upon [defendant], at the address specified by him, a notice that he will be heard by the grand jury at a given time and place" (CPL 190.50 [5] [b]).
The only issue in this case is whether defendant waived his right to testify at the grand jury. The District Attorney argues that defendant waived that right by not appearing at the courthouse "[a]t the end of business on September 17, 2021" (Choi affirmation in resp at ¶ 6). The record does not support this argument.
To support this waiver claim, the District Attorney argues that defendant did not appear on the scheduled date to testify "[d]espite being notified that failing to appear before Grand Jury [sic] would be deemed a waiver of Defendant's right to testify" (Dist Atty memo of law at sec I, p 7). The District Attorney is apparently referring to this language in its standard written CPL 190.50 notice:
"The attorney for an incarcerated defendant, who desires to exercise the right to testify before the Grand Jury, is required to appear on the 16th floor at 320 Jay Street prior to 5:00 p.m. to provide such testimony on the above date. Preparation of defendant's testimony before the Grand Jury must be done prior to 5 p.m."But the District Attorney cannot rely on that language to establish a waiver under the facts of this case. Defendant and counsel could not comply with the 5:00 p.m. timetable in the CPL 190.50 notice. Defendant was not produced to the courthouse before 5:00 p.m. through no fault of his own or defense counsel (see People v Genyard, 84 AD3d 1398, 1398 [2d Dept 2011] [no violation of statutory right to testify at the grand jury when defendant's "own dilatory actions were the cause of his failure to testify"]). Defense counsel reaffirmed defendant's intention to testify during that day and stated that she would travel to the courthouse to meet with the defendant when he was produced. Moreover, the ADA never stated to defense counsel that failing to appear by 5:00 p.m. would be deemed a waiver of the right to testify at the grand jury. In fact, the ADA promised to wait for defense counsel before asking the grand jury to vote on [*2]the case. Defense counsel justifiably relied on that promise, which the ADA broke for no valid reason. On these facts, the District Attorney erroneously "deemed" defense counsel's nonappearance at the courthouse by 5:05 p.m. to be a waiver of defendant's right to testify at the grand jury (see Choi affirmation in resp at ¶ 6).
Because of the violation of Criminal Procedure Law § 190.50, this court does not rule on the part of defendant's motion that argues to dismiss the indictment on the separate ground that defense counsel was denied the opportunity to observe the so-called "one round test" conducted by the New York City Police Department.
For the reasons stated above, defendant's motion to dismiss the indictment is granted. The District Attorney is granted leave to resubmit the case to another grand jury within 45 days from the date of this decision and order (see CPL 210.20 [4]).
The current securing order remains in effect for 45 days (see CPL 210.45 [9]).
This is the decision and order of this court.
Dated: December 2, 2021
Brooklyn, NY
___________________________
HEIDI C. CESARE, A.J.S.C.
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