DECISION AND ORDER The defendant moves for an order, pursuant to CPL §190.50, to dismiss the indictment on the ground that the People deprived her of an opportunity to testify before the grand jury. The People filed opposition. Upon due consideration of the papers, the defendant’s motion is denied. On March 16, 2022, the defendant was arraigned in Criminal Court on a felony complaint, under Kings County Docket Number CR-006806-22KN, which charged her with Attempted Murder in the Second Degree and other related offenses. At that time, the People served written CPL §190.50 notice upon defense counsel, who thereafter served reciprocal CPL §190.50 notice, informing the prosecution of defendant’s intent to testify before the grand jury. The court set bail, which the defendant posted the following day. The following facts are essentially undisputed by either party. On March 17, 2022, the People served defense counsel with a copy of the defendant’s videotaped custodial interrogation and informed defense counsel that the defendant was scheduled to testify in the Grand Jury at 10:00 a.m. on March 21, 2022. During the interrogation, detectives purportedly showed the defendant surveillance video footage, asking her to identify herself and describe various events depicted therein. On March 18, 2022, after reviewing the interrogation, defense counsel contacted the People and requested copies of the surveillance footage and/or still images captured from the video. On the morning of March 21, 2022, defense counsel apprised the prosecution that she could “not present [the defendant] without [first receiving] the videos that are incorporated by reference in her statements” to detectives. The People confirmed that surveillance video had been shown to the defendant but explained that the video did not contain any statements made by the defendant. Defense counsel argued that she was seeking only those portions of the video specifically raised by detectives during the interrogation, likening that them to “addenda to a contract” and claiming that they were “incorporated by reference in [the defendant's] statements.” The People declined to disclose the materials requested. Neither the defendant nor defense counsel appeared in the grand jury on March 21, 2022. The People subsequently rescheduled the defendant’s testimony for 10:00 a.m. on March 22, 2022 and informed defense counsel that would not provide the requested video/images beforehand. When the defendant failed to appear on March 22nd, the People charged the Grand Jury on the applicable law and secured the indictment. 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]). An individual’s right to appear as a witness before a Grand Jury convened to consider charges against him or her is purely statutory (see CPL §190.50). Where defendant timely serves the People with written notice of his or her desire to testify before the grand jury, the People must accord defendant a reasonable opportunity to do so (People v. Sawyer, 96 NY2d 815 [2001], rearg denied, 96 NY2d 928 [2001]); People v. Pugh, 207 AD2d 503 [2d Dept 1994]). What constitutes a reasonable opportunity is determined on a case-by-case basis (Sawyer at 816; People v. Jordan, 153 AD2d 263 [2d Dept 1990], appeal denied 75 NY2d 907 [1990]). The defendant argues that the People’s alleged failure to turn over the surveillance video footage/images prior to her scheduled appearance date effectively deprived her of a reasonable opportunity to testify before the grand jury despite her timely service of cross CPL §190.50 notice. The defendant’s claim is without merit because her failure to testify before the grand jury was of her own creation. CPL §245.10(1)(c) provides, “The prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any 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 a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part.” Notably, it is the only subsection of the statute that explicitly refers to a defendant’s right to appear before the grand jury, which reflects legislative intent to limit application of the prospective disclosure obligation imposed under the provision to those discoverable materials specifically enumerated therein. The defense concedes that the People served the complete recording of the defendant’s interrogation. To adopt defense counsel’s argument and find that the prosecution was obligated to disclose surveillance video/images to the defense 48 hours prior to the defendant’s Grand Jury testimony merely because the defendant was shown the materials during her interrogation would be to expand the breadth of CPL §245.20(1)(c) beyond its logical boundaries. Here, the People provided a copy of the custodial interrogation well prior to the 48-hour period immediately preceding the defendant’s scheduled appearance in the grand jury. Consequently, the People satisfied the requirements of CPL §245.10(1)(c). Where “[t]he records supports the conclusion that [defendant's] failure to testify was based on his own actions,” the People are not required to reschedule his appearance to satisfy their obligations under CPL §190.50(5)(a) (People v. McKay, 85 AD3d 821, 822 [2d Dept 2011], Iv denied 17 NY3d 819 [2011]; People v. Quinones, 280 AD2d 559 [2d Dept 2001]).1 Thus, because the People furnished defendant with a reasonable opportunity to testify before the grand jury, dismissal of the indictment is not warranted (see People v. Simmons, 10 NY3d 946 [2008], affg 9 NY3d 1010 [2007]; People v. Boswell, 163 Misc2d 529 [Sup Ct, Kings County 2002]). Accordingly, it is hereby: ORDERED, that the defendant’s motion is denied. This matter is next on for June 16, 2022. The foregoing constitutes the decision and order of the court. Dated: May 11, 2022
