PEOPLE v. TORRES (2023)

Defendant Abraham Torres moves, in his motion filed October 28, 2022, for an order dismissing the indictment pursuant to C.P.L. §§ 190.50, 210.20(1)(c), and 210.35, on the grounds that the defendant was not accorded an opportunity to appear and testify before the grand jury. In their response filed November 28, 2022, the People opposed the defendant's motion, arguing that the defendant was properly afforded an opportunity to testify, but that defense counsel, on the defendant's behalf, waived the defendant's right to testify. After careful consideration of the defendant's motion and the People's opposition, the defendant's motion to dismiss to dismiss the indictment and any charges therein is denied.

Background

On September 9, 2022, the defendant, along with his co-defendant, Moises Torres, was arraigned on felony complaints for incidents on September 6, 2022 and September 7, 2022, on charges that included, inter alia, Robbery in the First Degree, under P.L. § 160.15(3); Robbery in the Second Degree, under P.L. § 160.10(1); and Assault in the Second Degree, under P.L. § 120.05(6). The defendant's bail was set in the amount of $20,000 cash, $60,000 bond, or $60,000 surety bond partially secured at 10%. At his arraignment, the People served on the defendant with C.P.L. § 190.50 notice of their intention to present to the grand jury, with the defendant's testimony scheduled for September 13, 2022, at 9:30 am, should he wish to testify. The case was adjourned to September 13, 2022, in Part AP-6, for the People to present the case to the grand jury pursuant to C.P.L. § 180.80.

Accordingly, on September 13, 2022, Assistant District Attorney Brian Kohm, on behalf of the People, Candace Pond, on behalf of the defendant, Abraham Torres, and Melissa Kaplan, on behalf of co-defendant, Moises Torres, appeared in Part AP-6 before the Honorable Jerry Iannece. At that time, the following colloquy occurred on the record:

THE COURT: Good afternoon, Ms. Kaplan. Good afternoon. All right. Defendants produced and waived. What are we doing today?

MR. KOHM: People's case are in so we are going to ask to forthwith to AR-3.

THE COURT: Ms. Kaplan, is he testifying?

MS. POND: I am going to withdraw.

THE COURT: Cases are all in, all four in?

MR. KOHM: Yes, your Honor.

THE COURT: And defendant will not testify? If indicted Tap A, how is October 4, 5th or 6th, Ms. Kaplan?

MS. KAPLAN: October 6 please.

THE COURT: 10/6/22 Tap A if indicted; if not indicted how is November 9 in AP-6.

MS. POND: That should be fine.

THE COURT: 11/9/22 on all matters same bail conditions, order of protection continued. All matters forthwith AR-3 for grand jury action and or 180.80. Defendant is not testifying on any of these matters.

MS. KAPLAN: That's correct.

MS. POND: That's correct.

THE COURT: Thank you.

As stated by the People in their sworn Affirmation in Opposition to the Defendant's Motion to Dismiss the Indictment, on September 13, 2022, the grand jury returned a true bill for the charges stemming from the September 6, 2022, incident. On September 26, 2022, the grand jury returned a true bill for the charges from the September 7, 2022, incident. On October 6, 2022, the parties appeared in Part TAP-A before the Honorable Tony Cimino and the matter was adjourned to October 24, 2022, for an arraignment on an indictment. On October 24, 2022, the parties were arraigned on the indictment and the matters were further adjourned by the Honorable Tony Cimino to November 17, 2022, in TAP-A for conference and discovery compliance. Four days later, on October 28, 2022, the defendant timely filed the instant motion.

Discussion

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

The right afforded to a defendant to give testimony to the Grand Jury is a statutory right given by the state of New York. It is not a right prescribed by the federal or state constitution. People v. Lee, 2007 WL 4289330 (2007). In fact, “the right to testify before the Grand Jury is not an absolute or inherent right, nor is it a ‘fundamental right’ set forth by the Constitution or by the Supreme Court.” People v. Padin, 184 Misc 2d 974 (2000), citing People v. Fox, 175 Misc 2d 333 (1997); see also United States v. Williams, 504 U.S. 36, 52 (1992); see also People v. Thomas, 213 AD2d 73 (1995); see also People v. Feliciano, 207 AD2d 803 (1994).

The People are initially responsible to comply with C.P.L. § 190.50 by notifying the defendant of his or her right to appear before the Grand Jury and to afford the defendant a “reasonable time to appear.” People v. Smith, 87 NY2d 715 (1996); see People v. Quinones, 280 AD2d 559 (2nd Dept. 2001); see People v. Jordan, 153 AD2d 263 (2nd Dept. 1990). The notice must be “reasonably calculated to apprise the defendant of the grand jury proceeding.” See Quinones, at 559, citing Jordan, at 266. The People owe a duty of fair dealing to the accused and once the People have given actual notice to the defendant then the People must consistently act in good faith. See People v. Pelchat, 62 NY2d 97 (1984); see also People v. Gray, 158 Misc 2d 597 (1993); see also People v. Theard, 155 Misc 2d 475 (1992); see also People v. Duran, 266 AD2d 230 (2nd Dept. 1999).

The Court finds that the People satisfied their burden of notifying defendant of her right to appear before the Grand Jury. The defendant was arraigned and served written notice on the People of his intention to appear before the Grand Jury as prescribed by CPL § 190.50 (5)(a). The People notified the defendant by letter of the date, time, and location of his scheduled appearance before the Grand Jury pursuant to CPL § 190.50 (5)(b). The People afforded the defendant with a reasonable time to appear. The matter was adjourned for that same date, on September 13, 2022, in Part AP-6, at which time, the defendant, through counsel, affirmatively withdrew notice of his intention to testify in the grand jury. There is no indication in the record or in the defendant's motion that the defendant subsequently renewed his notice of an intention to testify.

Therefore, this Court finds that the People did not violate the defendant's right to testify in the Grand Jury. As such, the defendant's motion to dismiss pursuant to C.P.L. § 190.50 is denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Cassandra M. Mullen, J.