DECISION AND ORDER The defendant is charged with two counts of Robbery in the Second Degree and other related charges. On February 20, 2024, defendant filed a motion pursuant to CPL §190.50, seeking dismissal of the indictment. On March 4, 2024, the People filed opposition. On January 14, 2024, the defendant was arraigned in Criminal Court on a felony complaint, charging her with Assault in the Second Degree and other related offenses. At that time, the People served written CPL §190.50 notice upon defense counsel, Mackenzie Koppenhofer, Esq., the attorney of record, who thereafter served written reciprocal CPL §190.50 notice, informing the prosecution of defendant’s intent to testify before the Grand Jury. Ms. Koppenhofer wrote defense attorney Julia Coppelman’s name and contact information on the written notice so all inquiries could be sent to Ms. Coppelman. Ms. Coppelman is also a member of Brooklyn Defender Services (hereinafter, “BDS”). The defendant was released under supervision and the matter was adjourned to January 31, 2024 for Grand Jury action. The People’s written CPL §190.50 notice served at arraignments indicated that the defendant was scheduled to testify before the Grand Jury on January 19, 2024 at 1:00 pm. The notice specifically advised that “[f]ailure to appear at the above time and place will be deemed a waiver of your client’s 190.50 rights.” On January 17, 2024, the People sent an email to attorney of record Koppenhoffer and the BDS discovery service email, reiterating that the defendant was scheduled to testify before the Grand Jury on January 19, 2024. The People again stated in their email that “[f]ailure to appear at the above time and place will be deemed a waiver of your client’s 190.50 rights.” Ms. Koppenhofer was not available and did not respond to the People’s correspondence. The defendant did not appear on January 19, 2024. The People presented the case to a Grand Jury and secured an indictment against the defendant. The defendant now claims she was denied a reasonable opportunity to testify before the Grand Jury. The basis is that the People sent an email to the wrong attorney regarding scheduling the defendant’s testimony. 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]). The defense does not dispute that the People served written CPL §190.50 notice upon defense counsel Koppenhofer at Criminal Court arraignments for the defendant’s testimony to take place on January 19, 2024. Although the assigned ADA sent an email two days after the defendant’s arraignment to Ms. Koppenhoffer, who remained the attorney of record, and not Ms. Coppelman, the assigned ADA also included the BDS electronic service email provider ([email protected]). This court takes judicial notice of a letter, signed by Nancy Hoppock, Chief Assistant District Attorney of Kings County, and Lisa Schreibersdorf, Executive Director of BDS, that states, in relevant part, “the Kings County District Attorney’s Office (KCDA) and Brooklyn Defenders Services (BDS) mutually agreed to accept electronic service of items that require ‘legal service’ including, but not limited to, statements of readiness, certificates of compliance, motion, 190.50 notices and other legal papers requiring service” (emphasis added). The letter further states that “BDS agreed to accept service of such items via email sent to [email protected]” and that “such service shall be valid service” (emphasis added). This court is unaware that either BDS or the DA’s Office has withdrawn their consent to electronic service as outlined in their joint letter. Ms. Koppenhoffer was on notice that her client was scheduled to testify on January 19, 2024 when she was provided with the People’s written notice at Criminal Court arraignments. The fact that the assigned ADA sent a second notice to counsel is of no consequence because the date for the defendant’s testimony remained the same from what counsel was informed of during the initial arraignment. Ms. Koppenhoffer was provided written notice of when her client was scheduled to testify. Further, the entire BDS agency was on notice of the defendant’s scheduled date to testify before the Grand Jury because the assigned ADA emailed the BDS service email provider. No supervisor or attorney representative of BDS responded to the People’s notification to ask for additional time, or a different date and time for the defendant to testify. Therefore, the court finds that the People properly served written notice in accordance with CPL §190.50 and afforded the defendant a reasonable time to exercise her right to appear before the Grand Jury (see People v. Ward, 234 AD2d 723, 723 [3d Dept 1996]; see also People v. Luna, 191 AD2d 588, 589 [2d Dept 1993]; People v. Brooks, 184 AD2d 518, 518-19 [2d Dept 1992]). When the defendant failed to appear before the Grand Jury on January 19, 2024, the defendant waived her right to testify. Accordingly, the defendant’s motion to dismiss is denied. This case is next on April 1, 2024 in TAP-1. The foregoing constitutes the decision and order of the court. Dated: March 22, 2024
