Testifying before the Grand Jury and Dismissing the Indictment

Grand Jury Testimony is the opportunity to hear the case if not obtain dismissal through accused before the indictment is rendered. This New York Criminal Defense case highlights why having a diligent engaged attorney, able to either present the defendant or oppose the district attorney, can make the difference in dismissing the New York State indictment.

In  People v. Ejiaku, The defendant was 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" which was denied because the defense attorney failed to properly present or object to the notice served pursuant to the CPL, the New York Criminal Procedure Law.

As often is the case, the People served written CPL §190.50 notice upon defense counsel during arraignment. The public defender/assigned attorney actually served written reciprocal CPL §190.50 notice, informing the prosecution of defendant’s intent to testify before the Grand Jury.

The public defender service arraigned Defendant who was subsequently 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." As is often the case, 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.”

Of note is the facts as detailed by the Court in this case, the public defender received notice but did not respond:

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 entire basis for the motion is that the People sent an email to the wrong criminal defense attorney regarding scheduling the New York criminal defendant’s testimony. This sometimes occurs in error or sometimes occurs when there is no coordinated effort among the criminal defense team. The court notes:

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 (service@bds.org). 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 service@bds.org” 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.

The Court finds that the Criminal Defense Attorney was on notice that her client was scheduled to testify on January 19, 2024 the Criminal Defense Lawyer was provided with the written notice at 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."

As opposed to an individual attorney, responsible for the criminal defense, the Court notes that "the entire [] agency was on notice of the defendant’s scheduled date to testify before the Grand Jury because the assigned ADA emailed the [public defender] service email provider." The Court denies the motion: "No supervisor or attorney representative [the public defender] responded to the People’s notification to ask for additional time, or a different date and time for the defendant to testify." The court finds that the People properly served the "...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])...

The case is People v. Ejiaku | New York Law Journal , law.com/newyorklawjournal/almID/1712221478NYIND70685 ... The Court finds that "[w]hen 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."

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

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