The following papers were considered by the Court: 1. Defendant’s Motion to Dismiss, filed on March 24, 2020. 2. People’s Response to Defendant’s Motion to Dismiss, filed on May 18, 2020. 3. Defendant’s Reply Affirmation, filed on May 21, 2020. DECISION AND ORDER The defendant is charged under Indictment No. 378N-2020 with one count of Burglary in the Second Degree, Penal Law §140.25(2) and one count of Attempted Burglary in the Second Degree, Penal Law §110/140.25(2), for an alleged incident that occurred on February 12, 2020 in Nassau County. Also charged under this indictment are co-defendants William Medel Perez and Amaro Rosas Rosas. The defendant, by counsel Mitchell Barnett, moves for dismissal of the indictment pursuant to CPL §190.50(5) and §210.20, on the grounds that the defendant was denied the opportunity to exercise his right to testify before the grand jury. On March 5, 2020, the defendant, along with four related or co-defendants, was arrested and charged with Burglary in the Second Degree. On March 6, 2020, the defendants were arraigned, and bail was set. At the arraignment, the defendants were represented by the assigned counsel of the day. The cases were adjourned to March 10th for a conference in Part AP1 before the Honorable Meryl Berkowitz. On March 10th, the defendants were all assigned 18b counsel. Mitchell Barnett was assigned to represent the defendant, Juan Hernandez Rosas. The defendant was not produced in court that day and thus, Judge Berkowitz declined to entertain a bail application. The People stated their intention to present the case to the Grand Jury but did not indicate that the presentment was imminent. The defendant did not demand a felony exam. Mr. Barnett asked that the defendant’s case be adjourned until March 16th for a bail application. Later that day, the co-defendant, Amaro Rosas Rosas, appeared with his assigned attorney, Christopher Devane, Esq., before Judge Berkowitz and demanded a felony exam. The co-defendant’s case was adjourned to March 19, 2020, for a felony exam. Mr. Barnett was not in the part when the co-defendant’s case was called. Mr. Barnett affirms that on March 12th, he visited his client at the jail with a Spanish interpreter but did not speak with him about testifying in the Grand Jury because he had not yet received any notice of presentment. On March 16th, the defendant’s case was conferenced before Judge Berkowitz. The defendant was not produced in Court. Mr. Barnett made a bail application and the Court denied the application. The People stated on the record that they would be presenting the case to the Grand Jury, but an exact date of presentment was not given. The A.D.A. asked Mr. Barnett if his client would be testifying in the Grand Jury. Mr. Barnett stated on the record that his client was going to testify. The case was adjourned until March 19th. The context upon which this case was unfolding is relevant in deciding this motion and therefore, must be addressed by the Court. A public health emergency was rapidly emerging in New York State, the United States and foreign countries. The emergency involved a highly contagious virus which has become known as COVID-19. The emerging threat to public safety was recognized and addressed by the Governor of New York, Andrew Cuomo, as well as the New York State Office of Court Administration (OCA). On March 7, 2020, Governor Cuomo issued Executive Order 202, declaring a state disaster emergency in connection with the COVID-19 virus. The order stated it “was issued in response to the rapidly escalating novel coronavirus public health crisis.” The emergency order stated that “a disaster was impending in New York State, for which the affected local government would be unable to respond adequately” and accordingly, the declaration of a “state disaster emergency for the entire State of New York” was necessary (Executive Order [A. Cuomo] No. 202). On March 13, 2020, OCA began scaling back its operations in order to significantly reduce courthouse traffic in response to the COVID-19 outbreak. With respect to criminal proceedings, Chief Administrative Judge Lawrence Marks ordered that no new Grand Juries be empaneled, absent extraordinary circumstances and that any Grand Jury proceedings that had already commenced could proceed. In a memorandum issued two days later on March 15, 2020, Judge Marks ordered the postponement, “until further notice,” of “all non-essential functions of the courts.” All non-essential Court personnel were directed to remain home indefinitely. On Friday, March 13, 2020, the Nassau County Correctional Center (NCCC) suspended all in-person visitation as of 5:00 p.m. that day. NCCC had to contain the spread of the virus at the jail. Inmate visitation created the possibility of spreading the virus. In order to maintain contact between attorneys and their clients, NCCC provided inmates with access to telephones in order to speak with their attorneys. This was a new process and it required the inmates to place the calls to their attorneys. NCCC did not provide defense attorneys with any process by which they could place direct calls to their clients. NCCC set hours for inmate telephone access, Monday through Friday (no weekends) between the following hours: 9:00 a.m. to 10:30 a.m. and 12:00 p.m. to 2:30 p.m. This allotted a three-hour time period in which many attorneys would typically be in court. The calls were free and not recorded. The decision by NCCC to allow telephone access was so recent that at the time of the defendant’s Grand Jury presentation, it was not widely known to the defense bar. On March 17, 2020, at approximately 2:36 p.m., the People served defense counsel with written notice via facsimile that the case would be presented to a Nassau County Grand Jury on March 18, 2020. Mr. Barnett affirms that he received the notice at 2:38 p.m. on March 17th. Only one business day (March 16th) had passed between the closure of the jail and the People’s service of the notice of presentment. On March 18th, a District Attorney supervisor telephoned Mr. Barnett to inquire whether his client would be testifying before the Grand Jury. Mr. Barnett affirms that he spoke with the District Attorney supervisor and stated that he had no way to confirm that his client wanted to testify and asked that he be produced on the day of presentment so he could speak with him about testifying. There was no discussion between the District Attorney supervisor and Mr. Barnett regarding NCCC’s new telephone access procedure. The case was presented to a Grand Jury on March 18th and the defendant was indicted. It is undisputed that the defendant was not produced from the jail to testify in person before the Grand Jury. On March 23, 2020, the defendant was arraigned on the indictment. The Court recognizes at the outset, that NCCC, the People and defense attorneys were left with few options on how they could continue to perform their respective obligations. NCCC had to safeguard the jail to prevent the virus from spreading while also continuing to allow contact between inmates and their attorneys. The People had to continue the process of prosecuting cases, which of course would include presenting cases to a Grand Jury. In normal times, the presenting of cases to a Grand Jury is a routine process conducted by the People. On the defense side, the process of representing an incarcerated client suddenly became extremely difficult. The simple task of visiting a client at the jail was no longer available. Normally, the Nassau County District Attorney’s Office (Nassau DA) would produce inmates to the Courthouse on the date of their Grand Jury proceeding, unless they were certain the defendant was not testifying, so that their attorneys could conference with them. Due to the COVID-19 pandemic, NCCC was no longer transporting inmates to the Nassau County Courthouse. Like the termination of in-person visitation, NCCC’s decision to cease transportation of inmates from the jail to the Courthouse was prudent and made in order to contain the spread of the virus. The options usually available to all involved had suddenly become non-existent. CPL §190.50(5)(a) provides that where a defendant has been arraigned on an undisposed felony complaint, “the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein” (People v. Smith, 87 NY2d 715 [1996]). Courts in New York have long held that “the concept of reasonableness is not a stagnant one and must be applied to the particular facts of any given case” (People v. Jordan, 153 AD2d 263 [2d Dept, 1990]). “There can be little question that the framers of the CPL regarded the defendant’s absolute right to testify before the Grand Jury as a significant one” (id. at 266). Courts have been consistent that this notice must be actual rather than technical (People v. Martinez, 111 Misc2d 67 [Sup Ct, Queens County, September 30, 1981]). Indeed, such notice should clearly advise a defendant as to a specific time, date and place of the Grand Jury deliberations as well as giving the defendant some idea of the nature and scope of the Grand Jury inquiry so as to enable him or her to appear meaningfully as a witness and, if necessary, secure the effective aid of counsel (id. at 69). As the Court of Appeals instructs, a defendant’s right to testify before the Grand Jury must be scrupulously protected (People v. Smith, 87 NY2d 715 [1996]). The “concept of ‘reasonableness’ of notice must be applied to the particular facts of any given case and it must take into account the duty of the District Attorney and the courts to ensure that an accused be accorded fair dealing in grand jury submissions” (People v. Leggett, 196 Misc2d 727 at 731 [Sup Ct, Kings County, July 17, 2003]; People v. Jordan, 153 AD2d 263 [2d Dept, 1990]). The question before this Court, is whether the People’s actions, in the circumstances herein, satisfied the notice requirements contemplated by the relevant provisions of CPL §190.50. The Court finds that no matter how well-intentioned the People were in trying to continue to perform their prosecutorial obligations, the one day’s notice of the Grand Jury presentation was unreasonable. The one day’s notice failed to allow the defendant a reasonable opportunity to exercise his right to appear as a witness and have reasonable time to consult with counsel and decide whether to testify, before the case was presented to the Grand Jury (People v. Degnan, 246 AD2d 819 [3d Dept, 1998]; People v. Hymes, 122 AD3d 1440 [3d Dept, 2014]; see also People v. Fields, 258 AD2d 593 [2d Dept, 1999]); People v. Randazzo, 171 Misc2d 541 (Sup Ct, Kings County, January 23, 1997). The fact remains that Mr. Barnett had no ability to visit his client at the jail with a Spanish Interpreter after March 13th, and it is uncontested that the defendant could not be produced in court on the day of presentment. “The defendant’s statutory right to testify before the Grand Jury cannot be diminished or limited by the logistical problems in producing a State’s prisoner at the Grand Jury proceeding” (People v. Trammel, 178 Misc. 2d 753, 757 [1998]). A defendant’s rights to counsel and to appear before the grand jury are inextricably linked. These rights “cannot be abridged by giving the defendant the opportunity to testify, but compromising his right to effective assistance of counsel before waiving immunity and being subject to cross-examination by the People at that proceeding” (id. at 756). Counseling a client on whether to appear before the Grand Jury is an important duty of a defense attorney. The decision to testify can have long lasting impact on trial strategy and the outcome of a case. The legal significance of a defendant testifying before a Grand Jury is enormous. Not only must the defendant waive immunity, but his Grand Jury testimony can be used by the People in their case-in-chief, even without the defendant testifying at trial. Further, counseling a client on whether to testify, and preparing a client to testify and be cross-examined, are not tasks that can be effectively done by a defense attorney over the course of a telephone call. A telephone call is not an adequate substitute for an in-person consultation with a client. Once a decision is made to testify, a defense attorney must be afforded enough time and conditions to prepare their client. Here, the defendant was not provided the opportunity to testify nor was he given the opportunity to meet with his attorney at the jail or courthouse to discuss the Grand Jury presentation. The Court understands that NCCC had a duty to protect inmates, staff and the public. However, the crisis created by COVID-19 did not eliminate the defendant’s rights to speak and consult with his attorney as required by CPL §190.50(5)(a). The People argue that dismissal of defendant’s motion is warranted because Mr. Barnett expressed ambiguity on March 18th about whether his client would actually testify. The Court finds this argument to be of no consequence since the one day’s notice of presentation was unreasonable. The People further argue that the Court should deny defense’s motion because the defendant did not serve written notice of his intent to testify upon the People as required by CPL §190.50(5). The defense concedes that formal written notice of defendant’s intent to testify was not served upon the People. However, the Court is aware of the longstanding policy of the Nassau DA not to require formal written notice. In deciding this particular issue, the Court is also mindful that Mr. Barnett had no ability to visit his client. There is no doubt that Mr. Barnett’s ability to consult and advise his client was hindered due to the jail’s suspension of visitation and termination of inmate production in response to the pandemic, all to the detriment of the defendant. Mr. Barnett’s difficulties were further complicated because a Spanish interpreter was also needed to communicate with his client. As stated above, the Nassau DA’s policy did not require written notice. Second, the jail closure prevented the defendant from having a jail visit with his attorney to discuss the Grand Jury issues and prevented the defendant from being produced at the Courthouse on the day of presentment. The interests of justice require that the defendant be allowed to exercise his statutory right to testify before the grand jury and he should not be penalized as a result of the chaos caused by the pandemic. Accordingly, the Court rejects the People’s request to deny the motion based on CPL §190.50(5)’s requirement that the defendant serve reciprocal written notice. Accordingly, this Court finds that the one day’s notice was unreasonable and did not give the defendant a reasonable opportunity to testify before the Grand Jury and therefore, the indictment must be dismissed. The defendant’s motion to dismiss is granted without prejudice and the People are granted leave to re-present the case to a new Grand Jury within thirty (30) days. This hereby constitutes the decision and order of this Court. SO ORDERED. Dated: July 20, 2020
