PEOPLE v. ABDULHAQQ (2023)

The defendant's motion for an order dismissing the accusatory instrument pursuant to CPL §§ 210.20(1)(c), 210.35(4) is denied. The law directs the People, with the force and effect of a court order, to disclose statements of a defendant no later than forty-eight hours prior to the time scheduled for the defendant to appear before the Grand Jury (CPL 245.10[1][c]). There is no statutory basis for the conclusion, however, that a prosecutor's discovery failure is equivalent to a failure to accord a defendant the opportunity to appear and testify before the Grand Jury. Accordingly, the Court finds no ground for dismissal based upon a violation of CPL § 190.50.

Factual Background.1

The defendant was arraigned in Criminal Court of the City of New York on October 16, 2022. Pursuant to CPL § 190.50(5)(a), the defendant served written notice requesting to appear before the Grand Jury as a witness on her own behalf. Pursuant to CPL § 190.50(5)(b), the People served notice that the defendant would be heard by the Grand Jury on October 20, 2022.

In the late afternoon of October 19, 2022, the assigned prosecutor sent an e-mail to defense counsel to confirm the defendant's testimony for the next day. Defense counsel e-mailed in response that she had not received any statements of her client. During a phone call that evening, the prosecutor told defense counsel that there were statements recorded on body-worn cameras, and defense counsel informed the prosecutor that she needed to review those videos with the defendant prior to her client's Grand Jury testimony.

The next morning the prosecutor appeared in court and requested a “good cause extension” of CPL § 180.80, based upon the fact that he had only recently gotten access to the body-worn camera video, and needed to redact it. The request was denied. The People e-mailed defense counsel a link to the video at 2:52 p.m. on October 20, 2022. The defendant did not testify before the Grand Jury, which returned an indictment charging robbery in the first degree (Penal Law § 160.15[3]) and other related charges.

The defendant has filed a motion to dismiss the indictment, pursuant to CPL §§ 210.20(1)(c) and 210.35(4), on the ground that the prosecutor's failure to disclose the video of her statements until the afternoon scheduled for her Grand Jury testimony denied her the statutory right to testify.

CPL § 190.50.

A defendant has the right to appear before a grand jury as a witness on her own behalf if, prior to the filing of an indictment she serves written notice upon the district attorney making such request (CPL § 190.50[5][a]). Upon service of such notice, the district attorney must serve upon the defendant a notice that she will be heard by the grand jury at a given time and place (CPL § 190.50[5][b]). If the defendant appears and signs a waiver of immunity, she must be permitted to testify before the grand jury (id.). If the defendant is denied the opportunity to appear and testify, the indictment may be dismissed upon motion of the defendant (CPL § 210.35[4]).

Since January 1, 2020, the law directs the People, with the force and effect of a court order, to disclose “no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding” (CPL § 245.10[1][c]) “all written or recorded statements, and the substance of all oral statements, made by the defendant ․ to a public servant engaged in law enforcement activity” (CPL § 245.20[1][a]). But the budget bill that enacted this pre-testimonial discovery requirement made no changes to CPL §§ 190.50, or 210.35. Nor does CPL § 245.10 reference dismissal or establish that its violation amounts to a violation of CPL § 190.50. The legislature could have made any of these changes, but it did not. The Court can only infer this omission was intentional (see, e.g., People v. Finnegan, 85 NY2d 53, 58 [1995] [“We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended.”]). “Thus, the [prosecutor] is not required to provide notice of any statements as a statutory 190.50 requirement connected with presenting the case to a grand jury” (People v. White, 72 Misc 3d 1002, 1006 [Sup Ct Bronx County 2021]).

The Court therefore finds no violation of CPL § 190.50. The defendant's motion does not establish that the delay in discovery rendered unreasonable the time accorded her to appear (CPL § 190.50[5][b]; see also People v. Sawyer, 96 NY2d 815, 816 [2001] [stating the prosecutor's notice must afford defendant reasonable time to consult with counsel and decide whether to testify]). The defendant made no request for additional time to review the videos before deciding not to testify, and the motion does not establish that such a request would have been futile. Further, the defendant does not affirm there was insufficient time to review the videos on October 20, 2022 prior to deciding she would not testify—in fact, the motion contains no affirmation that neither she nor her counsel did so.

Nor does the defendant's motion establish that the delay in discovery prevented her from giving relevant and competent evidence concerning her case (CPL § 190.50[5][b]; see also People v. Lerman, 116 AD2d 665, 666 [2d Dept 1986] [holding prosecutor's aggressive interruptions denied defendant a reasonably fair and uninterrupted opportunity to provide her version of events]). The defendant had made the statements only five days earlier, and the motion provides no reason to believe she had no substantive memory of them. The motion provides no insight into the defendant's prospective testimony, or how it was inhibited by the delay in discovery. Defense counsel has been in possession of the videos since October 20, 2022, but makes no reference to their contents or how their delayed disclosure interfered with the defendant's statutory right to testify.

CPL § 245.80.

Having concluded that “article 245 was intended to operate independently” (People v. Weston, 66 Misc 3d 785, 791 [Crim Ct Bronx County 2020]; see also People v. Carswell, 67 Misc 3d 444, 446 n [Crim Ct Bronx County 2020]), the Court also addresses the defendant's motion as a request for sanctions on the ground of delay in discovery. A violation of CPL § 245.10(1)(c) is a discovery violation, the remedy for which is contained in CPL § 245.80. The remedy for late discovery must be “appropriate and proportionate to the prejudice” caused by the delay (CPL § 245.80[1][a]).

The defendant's motion does not demonstrate prejudice. The motion does not state whether the defendant or defense counsel actually reviewed the videos on October 20, 2022 prior to making the decision the defendant would not testify. The defendant had made the statements only five days earlier, and the motion provides no reason to believe she had no memory of them. The motion does not establish that, had the defendant received the videos 48 hours earlier, she would have testified. Defense counsel has been in possession of the videos since October 20, 2022, but makes no reference to their contents or how their delayed disclosure influenced the decision not to testify. Finally, the motion does not demonstrate that, had the defendant testified, the outcome would have been different.²

Conclusion.

The creation of CPL § 245.10(1)(c)’s pre-testimonial discovery requirement did not create additional requirements for the satisfaction of CPL § 190.50. The legislature enacted the discovery requirements as part of a comprehensive reform that left 190.50 untouched. A violation of 245.10(1)(c), therefore, is a not a per se 190.50 violation but is instead a discovery violation, remediable pursuant to CPL § 245.80. Because the defendant's motion establishes neither that she was denied the right to testify, nor that she was prejudiced by the late discovery, it is denied.

This constitutes the Decision and Order of the Court.

FOOTNOTES

2.   The defendant's argument that the complainant may have given contradictory or differing statements because she was initially charged with assault in the second degree, but was indicted on robbery in the first degree, is entirely speculative.

Diane Kiesel, J.