Lets take a trip down memory lane to the ‘80s: a time when hair was big, music was bad, and some important cases that are still good law concerning grand jury practice and, in particular, motions to dismiss an indictment pursuant to CPL § 190.50 based on a violation of the defendant’s right to testify before the grand jury were being decided. 

With respect to grand jury proceedings, the district attorney has a “duty of fair dealing to the accused” (People v Pelchat, 62 NY2d 97, 105 [1984]; see also, People v Lancaster, 69 NY2d 20, 26 [1986]) and to the court (People v Ianniello, 21 NY2d 418, 424 [1968]).  This duty of fair dealing encompasses an obligation to ensure fairness in grand jury submissions (People v Pelchat, supra; People v Jordan, 153 AD2d 263 [2nd Dept 1990]; People v Russo, 128 Misc2d 876, 880 [Co Ct Suffolk Co 1985]), which includes notice of the grand jury proceedings that gives a defendant a reasonable opportunity to exercise his right to testify, not mere technical compliance with minimum statutory notice requirements (People v Davis, 133 Misc2d 1031 [Sup Ct Queens Co 1986]; People v Martinez, 111 Misc2d 67 [Sup Ct Queens Co 1981]; People v Rakity, 77 Misc2d 324 [Sup Ct Suffolk Co 1974]; People v Randazzo, 171 Misc2d 541 [Sup Ct Kings Co 1997] [one day’s notice is not reasonable notice]).

Under CPL § 190.50(5)(c) a defendant may move to dismiss an indictment on the grounds that he was denied the opportunity to testify before the grand jury.  Such a motion is waived, however, if not made within five days of arraignment (see also, People v Jones, 187 AD2d 750 [3rd Dept 1992], lv den, 81 NY2d 790 [1993]), although in some cases, discussed below, that five-day deadline may be extended.  

Defense counsel’s failure to have a defendant testify at the grand jury does not, per se, constitute ineffective assistance of counsel (People v Jiminez, supra; see also, People v. Wiggins, 89 NY2d 872 [1996]), however actions of counsel that deprive a defendant of a meaningful opportunity to testify before the grand jury constitutes ineffective assistance.  For example, when notice of opportunity to testify before the grand jury is provided to defense counsel, failure to timely make defendant aware of such notice or otherwise protect defendant’s right to testify (by failing to provide the People with written notice of the defendant’s desire to testify, for example) is ineffective (see, People v Jiminez, supra; People v Prest, 105 AD2d 1078 [4th Dept 1984]; see also, People v Crown, 216 AD2d 484 [2nd Dept 1995]). 

Where a defendant is incapacitated at the time of the presentation to the grand jury, the indictment may be dismissed with leave to represent (People v Bakulas, 95 AD2d 813 [2nd Dept 1983]). Likewise, where defendant was represented at the time of the grand jury proceeding by counsel who rendered ineffective assistance the defendant may be considered legally “incapacitated” for purposes of exercising his right to testify, warranting extension of the time to file a motion pursuant CPL § 190.50 to a period of five days following the appointment of new counsel (see, People v Stevens, 151 AD2d 704 [2nd Dept 1989] [Five day time period for motion to dismiss held inappropriate where defendant unrepresented]; People v Moskowicz, 192 AD2d 317 [1st Dept 1993] [Five day time period inappropriate where prior counsel was ineffective]; see also, People v Hooker, 113 Misc2d 159 [Sup Ct Kings Co 1982]).  

A good example of a situation in which the five day period for a § 190.50 motion may be extended is provided by People v Prest, 105 AD2d 1078 [4th Dept 1984].  In Prest, the defendant was originally represented by a public defender for purposes of arraignment on the felony complaint.  After being indicted, defendant alleged that she was not advised of her right to testify before the grand jury by her public defender, and new counsel was assigned.  Within five days of being assigned, defendant’s new counsel moved for dismissal of the indictment pursuant to CPL § 190.50(5), based on denial of defendant’s right to testify before the grand jury.  County Court denied defendant’s motion and defendant thereafter pled guilty.  The Fourth Department reversed defendant’s conviction and dismissed the indictment, reasoning that

. . . the circumstances here militate against a strict application of the five day requirement (CPL 190.50, subd. 5, par. [c]) . . . Assigned counsel promptly moved within five days of his appointment to dismiss the indictment on the ground that defendant had improperly been denied her right to testify before the Grand Jury.

see also, People v Mason, 176 AD2d 356 [2nd Dept 1991] [five day period extended where new counsel is assigned]; People v Backman, 274 AD2d 432 [2nd Dept 2000] [same].  Further, at least one lower court has reasoned that “[i]t is quite possible that holding the defendant to the five day limitation in these circumstances could violate the defendant’s due process rights” (People v Onyeabor, 8 Misc3d 310, 314, n 10 [Sup Ct Kings Co 2005] citing Santobello v New York, 404 US 257 [1971]).

Circumstances giving rise to the filing of what would otherwise be an untimely § 190.50 notice can arise in several ways.  For example, counsel who represents the defendant at arraignment never meets with the defendant and advises him concerning his right to testify before the grand jury, or having determined that the defendant wishes to testify, counsel fails to notify the District Attorney in writing of defendant’s desire to testify.  Sometimes, counsel who is not present at arraignment is assigned thereafter, but never meets with the defendant before the grand jury votes an indictment.  Other times, counsel may appear with the defendant at arraignment and announce a conflict of interest and new counsel may not be assigned until after the indictment is voted, leaving the defendant unrepresented during the entire pre-indictment period and often, with the notice of his right to testify having been served on an attorney who does not represent the him (conflicted counsel who is present at arraignment) and who cannot advise him concerning his right to testify.  

Where the motion papers demonstrate that the defendant’s right to testify before the grand jury has not been “scrupulously protected,” the “mandatory language” of CPL § 190.50(5) “creates what is a ministerial duty on the part of the court to dismiss an indictment obtained in violation of a defendant’s right to appear before the Grand Jury” (Matter of Borrello v Balbach, 112 AD2d 1051 [2nd Dept 1985]; see also, People v Mason, 176 AD2d 356 [2nd Dept 1991]; People v Greenfield, 178 AD2d 653 [2nd Dept 1991]; People v Degnan, 246 A.D.2d 819 [3rd Dept 1998]).