DECISION AND ORDER Defendant moves for an order dismissing the indictment pursuant to CPL §§210.20 (1)(c) and 210.35(4) claiming that he was not afforded an opportunity to testify before the Grand Jury (CPL §190.50). Upon consideration of the arguments and exhibits of both sides, the defendant’s motion is denied. The defendant is charged with Burglary in the Second Degree, Criminal Contempt in the Second Degree, and related charges. The following finding of facts is based on the papers and court records. Defendant was arrested on the above charges on January 12, 2022. According to the People, defendant went to Kings County Hospital sometime after his arrest and before his appearance in Criminal Court on January 15, 2022, where he was to be arraigned on two separate felony complaints. At the arraignment, the prosecutor informed both the court and the defendant that Docket# CR-001150-22KN (the present indictment) had already been presented to a Grand Jury and an indictment had already been voted and filed. On the separate docket (Docket # CR-001 148), the People served notices, which included 190.50 notice. During the second call of this matter, the People handed the court a notice of a filed indictment, and the case was adjourned to January 18, 2022, for arraignment on the indictment. The unindicted matter was adjourned for the same date to Part AP1FW for possible grand jury action. Nonetheless, in an e-mail dated January 17, 2022, the People did schedule the defendant to testify in the Grand Jury on January 18, 2022, however defendant was not produced. The defendant states that he served the People with written cross CPL §190.50 on the day of the criminal court arraignment. He has attached a copy of this notice dated January 15, 2022 (Defense Exhibit A). Defendant claims that because the People needed to add the docket number to the front cover sheet of the indictment for the clerk’s office to file the indictment, the People did not complete filing the indictment until January 18, 2022, and accordingly, defendant’s cross 190.50 notice was timely, and he was deprived of his right to testify before the Grand Jury. The People oppose defendant’s motion claiming that defense counsel first sent written notice by email on January 17, 2022 (People’s Exhibit C) (the People acknowledge receiving oral notice on January 15, 2022). Although the People acknowledge that a docket number had to be added to the cover page of the indictment, they assert that the court should consider the filing date to be January 14, 2022, at 3:47, when the People the filed the indictment through the Electronic Document Delivery System (EDDS).1 The People claim that since the indictment was already filed on January 14, 2022, defendant’s notice was untimely. There is no Federal or State Constitutional right to testify before a Grand Jury (People v. Smith, 87 NY2d 715 [1996]; People v. Lighthall, 6 AD3d 1170 [4th Dept 2004], lv denied 3 NY3d 643 (2004); People v. Fox, 175 Misc2d 333 [Nassau Co. 1997]). The right to testify is purely statutory (see CPL §190.50). CPL §190.50 sets forth under what circumstances a defendant must be notified of a Grand Jury proceeding against him and when he has the right to testify before a Grand Jury. A defendant who has served notice on the People that he wishes to testify before the Grand Jury has the right to testify at any time prior to the filing of the indictment (People v. Evans, 79 NY2d 407 [1992]). CPL §190.50(5)(a) states as follows: Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision: (a) 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. The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding. In such case, 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… Here, the sole question before the court is whether the People satisfied their obligation to file the indictment when they filed it through the EDDS system on January 14, 2022.2 Initially, a review of the record indicates that the indictment was already filed at the time of the criminal court arraignment on January 15, 2022. After the prosecutor handed up a notice of the filed indictment for Grand Jury number 109 of 2022, the court stated: So then, having received notice of filed indictment indicating that the charges contained in the Criminal Court complaint 1150 of 22KN have now been indicted by the grand jury, that case is transferred to Supreme Court. You didn’t want to give any notices on that, Miss Santo? Ms. Santo: Only that I will leave that for the Supreme Court arraignment. Further the court has reviewed the file and the indictment, which indicates that the indictment contains the following notice: “Filed: Kings County-Supreme Court (Criminal Term) (EDDS) 1/14/2022 03:47 pm.” Thus, although the Supreme Court Clerk required additional information, ie., a docket number to be added to the cover sheet of the indictment, this court finds that the People followed the procedures set by the court when they filed the indictment through the EDDS system, where the notice on the indictment specifically states that the indictment was filed on January 14, 2022, at 12: 47 pm. Since defendant was arraigned on the felony complaint on January 15, 2022, after the indictment was filed, his cross CPL§190.50 notice was untimely served. For the above reasons, the defendant’s motion is denied. Accordingly, it is hereby: ORDERED, that defendant’s motion to dismiss is denied. The case is next on March 28, 2022 This opinion shall constitute the Decision and Order of the court. Dated: March 22, 2022
