DECISION AND ORDER Defendant was arrested at approximately 9:30 PM on October 17, 2023, and charged with robbery in the first degree (PL §165.15 [3]) and related offenses. He was arraigned on October 18, 2023. Counsel properly served cross grand jury notice under CPL §190.50 [5][a] and the case was adjourned to this part for the “180.80 day” — October 23, 2023. Defendant remained in custody as bail had been set at $75,000 cash, with alternatives of $150,000 insurance company bond or partially secured bond at 10 percent of $225,000. On October 23, defendant was not produced “for medical reasons.” The prosecutor informed the court that the case had been fully presented to the grand jury but for the jury’s vote, as the ADA had not been advised by counsel of defendant’s decision to testify. The court and the ADA each asked whether defendant intended to testify. Counsel obliquely responded, “Yes Judge, at this point I’m reaffirming cross.” With no objection from either side, the court mistakenly noted that the CPL §180.80 deadline was the next day, October 24, and ordered the prosecutor to defer the grand jury vote pending defendant’s determination. The court then ordered the People to issue an order to produce for the next day. Defense counsel made no application for defendant’s release under §180.80, and the People made no application for a “good cause” extension of time thereunder. The next day, October 24, the court was advised that defendant would not be produced in court as he had tested positive for COVID and was confined for medical reasons in the Rikers Island infirmary. Counsel argued that defendant should be released because the §180.80 time had expired the previous evening at 9:30 PM, and there had been neither a timely disposition of the felony complaint nor an application by the People to retain him in custody for “good cause” as provided under §180.80 [3]. The court and the prosecutor again tried to ascertain defendant’s intention to testify or not; counsel’s only response to these pointed questions was that “cross remains in effect.” The court denied counsel’s §180.80 release application. The court ordered defendant to be produced each day until the Department of Correction cleared him to be present and ordered the People not to vote the matter in order to preserve defendant’s opportunity to testify. The court found, sua sponte, that an extension of §180.80 time was proper for “good cause” under CPL §180.80 [3], as defendant was quarantined due to Covid, as well as under §180.80 [1], as a result of defendant’s request or condition. The People’s failure to request a good cause extension was irrelevant. The court now sets forth its reasoning in full for denying defendant’s release, because the facts giving rise to this issue, upon which there is no appellate case law, occur regularly in this pre-indictment part. It has become routine defense practice to serve cross grand jury notice under CPL §190.50 [5][a] at all felony arraignments as a prophylactic measure in case the defendant may wish to testify before the grand jury. Often when a defendant is in custody, the prosecutor fully presents the case to the grand jury within the six-day time frame but must, absent defendant’s assurance that he will not testify, defer the grand jury’s vote until the Department of Correction produces defendant. The best practice is for defense counsel to — as expeditiously as possible — either unequivocally state that his client will testify in the grand jury or withdraw the §190.50 [5][a] notice; neither of which was done here. Where, as here, counsel merely preserved the right to testify but failed to make a definitive statement about his client’s intention, the proceedings have been needlessly delayed. This long-standing but inefficient practice persists to date. (See, People v. De Jesus, 148 Misc 2d 198 [Crim Ct NY County 1990]). Although defendant served written notice of his intention to testify at arraignment, seven days later counsel could not or would not confirm such intention, instead he simply reaffirmed the §190.50 [5][a] notice. It is unknown whether counsel had contact with his client via telephone or video conference during that time, but it appeared that counsel did not know, or had not decided, whether his client would testify. Nonetheless, he argued that the People’s obligation to indict the defendant within the §180.80 time frame is independent of such determination, and because they failed to indict, and failed to expressly request a good cause adjournment on October 23, then defendant must be released. Accepting counsel’s interpretation would violate the rules of statutory construction requiring the court to construe all parts of a statute harmoniously to avoid inconsistent rulings. (NY Statutes §§97, 98). It cannot be said that CPL §§180.80 and 190.50 are independent of each other. While the People are obliged to dispose of a felony complaint within the §180.80 time frame, defendant effectively can wrest control of the schedule from the prosecutor by expressly requesting to give testimony to the grand jury.1 In addition to a “good cause” delay under §180.80 1CPL §190.50 [5][a] provides, as is pertinent to this case, that a “…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…he serves upon the district attorney of the county a written notice making such request….” (Emphasis supplied.) [3], the People’s time to dispose of a felony complaint is properly extended due to defense actions under §180.80 [1], as follows: Upon application of a defendant against whom [an undisposed of] felony complaint has been filed…and who has been confined in [custody for an excessive time], the court must release him on his own recognizance unless [1] the failure to dispose of the felony complaint…during such period of confinement was due to the defendant’s request, action or condition, or occurred with his consent. The “request, action or condition” provided for in this subdivision is not limited to specific circumstances; it applies not only where defendant’s medical condition prevents his appearance in the grand jury, but “where the delay is due to some action by the defendant,” (Peter Preiser, Practice Commentaries, McKinney’s CPL §180.80 [online version]), and thus, includes defendant’s request to testify in the grand jury by service of written notice pursuant to CPL §190.50[5][a]. By serving cross grand jury notice and requesting to give testimony here, defendant set in motion events which will require him to be brought to the grand jury. (De Jesus, at 203). If defendant has not been, or cannot be, produced due to his own medical condition, and counsel will not or cannot declare either way defendant’s choice to testify until he is physically produced, prompt disposition of the felony complaint is precluded. The provisions at issue here seek to protect the rights of defendants by ensuring an expeditious resolution of a felony complaint and providing them an opportunity to be heard by the grand jury. But no party in a criminal case should strategize “to procure an otherwise impermissible procedural advantage.” (People v. Davis, 49 NY2d 114, 119 [1979]). Just as the People cannot use CPL §180.80 as an excuse to deny the defendant his grand jury rights, (See, People v. Evans, 79 NY2d 407 [1992]), it contravenes the letter and spirit of these two provisions — and basic fairness to the People — for the court to permit a defendant to use §190.50 [5][a] notice as a lever for §180.80 release from custody when he has not clearly stated his decision either to testify or remain silent, and when his medical condition prevents him from being produced to the grand jury. (De Jesus, at 202). Thus, when the People are precluded from voting the indictment because a defendant postpones declaring his intention to testify or not, and his condition prevents him from being produced, defendant’s retention in custody beyond the §180.80 time frame is appropriate in order to preserve his right to testify. To decide otherwise would allow a defendant to submit a post-indictment §190.50 motion to dismiss for the People’s failure to permit him to testify in the grand jury.2 For the foregoing reasons, defendant’s application for release under CPL §180.80 is denied. This is the decision and Order of the court. Dated: November 2, 2023
