Thursday, September 25, 2008

CPL 190.50(5)(a) requires that upon a request from a defendant to appear
before the grand jury, the district attorney must notify the defendant or
his attorney of the prospective or pending grand jury proceeding and must "
accord the defendant a reasonable time to exercise his right to appear as a
witness therein." In People v Shemesh ( __ NY3d __ [9/16/08]) the Court of Appeals affirmed a dismissal of an indictment, with leave to represent, because there was record support for the lower courts findings that the district attorney had failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury. The facts in Shemesh, which are set forth in the 3-2 decision of the Appellate Division, First Department at 2008 NY Slip Op 00208,51 AD3d 239, reveal that the district attorney had provided the defendant with 4 possible dates to testify, but that the defendant could not testify on any of those dates due to either a change in counsel (not for the purpose of being deliberately dilatory) or because it would conflict with his observance of a religious holiday. The trial court and the majority of the Appellate Division held that merely providing a defendant with four possible dates to testify was unreasonable where the defendant had timely communicated good reasons that he was unable to testify on those dates and that he was able to testify on a different date during the term of the grand jury. The Court of Appeals had previously held in People v Sawyer (96 NY2d 815, 816 [2001]) that the "concept of reasonableness is flexible and must be applied to the particular facts of a case known at the time." Applying Sawyer, the Appellate Division held that "[a] flexible application of the concept of reasonableness to the particular facts...cuts in favor of defendant..."

The affirmance of this holding by the Court of Appeals should provide
valuable support for attorneys seeking to challenge the limited times
offered by a district attorney to their clients to testify at the grand
jury as being unreasonable.

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