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.

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.

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that

[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.

Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that

[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.

Thus, the People are required to have only substantial compliance with CPL 400.21 (2).

In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote

as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People's witnesses during both his opening and closing statements (see People v LaDolce, 196 AD2d 49, 57; see generally People v Bailey, 58 NY2d 272, 277-278). He also improperly elicited testimony from a police officer who vouched for the credibility of the confidential informant by testifying that the confidential informant had provided reliable information to the police in the past (see People v Slaughter, 189 AD2d 157, 160, lv denied 81 NY2d 1080). In addition, the prosecutor repeatedly elicited irrelevant and highly prejudicial testimony from several police officers concerning the percentages of convictions obtained by those officers in prior unrelated cases, referred to by the prosecutor as their "batting average[s]." That misconduct was compounded during summation when the prosecutor highlighted the "exemplary record" of the police officers and the confidential informant who testified for the prosecution by stating that they were "batting 100 percent[,] 85 percent, 90 percent" (see generally People v Ashwal, 39 NY2d 105, 109-110). Further, the prosecutor improperly elicited testimony establishing that defendant had been incarcerated since his arrest (see People v Paul, 229 AD2d 932, 933), as well as testimony on direct examination of the confidential informant that defendant had not made certain exculpatory statements to him while they were in jail following defendant's arrest (see generally People v Collins, 12 AD3d 33, 38-39).

It cannot be said that County Court "took appropriate action to dilute the effect of [the prosecutorial misconduct]" (People v Mott, 94 AD2d 415, 419), and we conclude that the misconduct "operated to deny . . . defendant his fundamental right to a fair trial" (People v Crimmins, 36 NY2d 230, 238). We therefore "must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" (id.).