PEOPLE v. SPENCE (2026)

The defendant is charged with Robbery in the Second Degree (PL § 160.10[2][a]) and other related charges. The defendant moves for an order dismissing the indictment (CPL § 190.50). The People oppose.

On March 23, 2026, the defendant and co-defendant, Destiny Harvey (“Harvey”), were arraigned on a felony complaint charging Robbery in the First Degree (PL § 160.15[3]) and other related charges. During the defendant's arraignment, the People served CPL § 710.30(1)(a) notice containing the sum and substance of a statement made by Harvey during a video recorded debrief along with notice that the defendant would be scheduled to testify on March 27, 2026. The defendant served reciprocal notice of the intention to testify before the Grand Jury. On March 24, 2026, the People shared discovery with the defendant, including body worn camera footage that contained the defendant's statements. The People did not disclose Harvey's full video recorded statement to the defendant.

On March 27, 2026, the defendant testified in the Grand Jury. On April 1, 2026, the People re-captioned the Grand Jury presentation to remove Harvey and proceed only against the defendant and, the Grand Jury returned a true bill against the defendant on the charges in this indictment. In an email dated June 9, 2026, the parties informed the court that the criminal action against Harvey was dismissed and sealed on or about April 18, 2026 (see Court Exhibit 1). The defendant was arraigned in Supreme Court on April 22, 2026, and filed the instant motion on April 24, 2026.

The defendant contends that the indictment must be dismissed because the People failed to provide Harvey's video recorded debrief statement within 48 hours of the scheduled Grand Jury appearance as mandated by CPL § 245.10(1)(c), which forced the defendant to choose between the CPL § 190.50 right to testify and the CPL § 180.80 right to be released. The defendant maintains that this resulted in prejudice, and as such the indictment should be dismissed and the People required to disclose Harvey's statement prior to a resubmission to another grand jury.

The People counter that they put the defendant on notice of Harvey's statement by providing the sum and substance of the statement at the defendant's Criminal Court arraignment; CPL § 245.10 does not require the People to disclose a co-defendant's statement prior to a defendant testifying in the Grand Jury; Harvey is not a co-defendant because Harvey was not indicted and the action against Harvey was sealed and dismissed  ¹ , and; the defendant cannot assert prejudice since the defendant did not confer with the People regarding disclosure of Harvey's statement.

The right to testify before the Grand Jury is not a constitutional right, but rather a statutory right provided for in CPL § 190.50 (People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 [1996]). Where a defendant serves timely notice to the People of their intent to testify before the Grand Jury, the People must accord the defendant with a reasonable opportunity to testify (CPL § 190.50[5][a]; People v. Sawyer, 96 N.Y.2d 815, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001], rearg denied, 96 N.Y.2d 928, 733 N.Y.S.2d 363, 759 N.E.2d 361 [2001]). Here, the defendant testified before the Grand Jury and thus, the People met their obligation to provide the defendant with an opportunity to testify (Sawyer, supra; People v. Evans, 79 N.Y.2d 407, 583 N.Y.S.2d 358, 592 N.E.2d 1362 [1992]).

The defendant's assertion that the People's failure to disclose the co-defendant's statement created prejudice by forcing the defendant to choose between testifying without the co-defendant's statement, or extending the People's time to hold the defendant for the grand jury is unavailing.

When a defendant has served notice of their intent to testify in the Grand Jury, the People's discovery obligation related to grand jury proceedings is as follows:

“[t]he prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part” (CPL § 245.10[1][c] [emphasis added])

The statements are described as all written or recorded statements, and the substance of all oral statements, made to a public servant engaged in law enforcement activity or to a person then acting under their direction or in cooperation with them that relate to the subject matter of the charges against the defendant in the case, or a defense against the charges (CPL § 245.20[1][a])

Article 245 was written as a whole and enacted in 2019, with several subsequent amendments. The Legislature specifically required the People to provide the defendant's statement before testifying in the Grand Jury but did not require disclosure of the co-defendant's statement in the plain language of CPL § 245.10(1)(c). Had the Legislature intended for the People to disclose the co-defendant's statement prior to a defendant's testimony in the grand jury, it would have done so by expressly enumerating the co-defendant as was done for automatic discovery pursuant to CPL § 245.20(1)(a) (see People v. Page, 35 N.Y.3d 199, 126 N.Y.S.3d 67, 149 N.E.3d 905 [2020]; People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995]; People v. Coley, 240 A.D.3d 122, 232 N.Y.S.3d 173 [2d Dept 2025]). Since the Legislature declined to expressly include the co-defendant's statement as a requirement for the discovery obligation of CPL § 245.10(1)(c), the courts must abide by the plain meaning of the statute (see People v. Bay, 41 N.Y.3d 200, 211, 208 N.Y.S.3d 490, 232 N.E.3d 168 [2024]; Matter of Avella v. City of New York, 29 N.Y.3d 425, 434, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017]; Matter of DaimlerChrysler Corp v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006]; People v. Tychanski, 78 N.Y.2d 909, 911, 573 N.Y.S.2d 454, 577 N.E.2d 1046 [1991]).

When harmonizing CPL § 245.10(1)(c) and CPL § 245.20(1)(a), the plain language shows that a defendant is entitled to their own written or recorded statement made to law enforcement or a person acting under law enforcement's direction that relates to the subject matter of the charges against the defendant. While the co-defendant's statement must be disclosed as part of automatic discovery it is plainly not part of the required discovery for Grand Jury proceedings.²

The Grand Jury is part of a truth finding investigatory process to determine if there is legally sufficient evidence to charge a defendant with a crime. Every witness is expected to testify to the truth as they perceived it. The Legislature enacted a statute to allow the defendant to receive any statement that the People intend to use against them to prevent surprise in the Grand Jury and allow the defendant to make a knowing and intelligent decision to testify or remain silent. The Legislature did not enact a structure that would allow defendants and co-defendants to obtain the other person's statements before participating in the truth finding process of the Grand Jury.

Accordingly, since the People were not required to disclose the co-defendant's statement prior to the defendant's testimony in the Grand Jury, there was no discovery violation and no sanction is warranted.

Accordingly, the motion to dismiss the indictment is denied.

The foregoing constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Harvey was a co-defendant at the time the defendant was arrested, arraigned and the criminal action presented to a Grand Jury. This argument is without merit.

2.   The defendant relies upon this Court's decision in People v. Burgess, 84 Misc. 3d 1246[A], 223 N.Y.S.3d 522 (Crim. Ct., Kings Co. 2024)). This argument is unavailing. Burgess stands for the proposition that lower Criminal Court has no jurisdiction to entertain a challenge to any purported discovery violation in the Grand Jury. To the extent that Burgess contends that the defendant is entitled to the co-defendant's statement prior to testifying in the Grand Jury, such contention is in error.

Dale Fong-Frederick, J.