Time running out; exercising the right to testify before the grand jury

If, as in our jurisdiction, the District Attorney opts for a lickety-split indictment procedure in order to avoid being required to proceed with preliminary hearings, defendants’ rights to testify before the grand jury may be compromised. On the other hand, there is an apparent anomaly in CPL Article 190 that may be employed to protect the defendant’s right to testify.

The scenario goes something like this: Defendant is arraigned on a felony in local court, where the District Attorney serves the defendant with notice of the date of the grand jury presentation (before the preliminary hearing date) and his right to testify. The matter is scheduled for a preliminary hearing. For whatever reason, the defendant does not serve notice of his intention to testify and does not testify before the PH. On the PH date, defendant appears and is handed a certification that the grand jury has voted to indict him, although the indictment has not yet been filed. Before the indictment is filed, defendant serves notice of his intent to testify and a demand that he be permitted to testify before a grand jury that has not already voted to indict him. Is he entitled to do so? I think so.

A defendant’s right to testify before the grand jury must be scrupulously protected (People v. Degnan, 246 A.D. 2d 819 [3rd Dept. 1998]). Pursuant to CPL § 190.50(5), People v. Johnson, 46 A.D.3d 1384 [4th Dept. 2007], and People v. Lyons, 40 A.D.3d 1121 [2nd Dept. 2007] a defendant may serve notice of his intention to testify before the grand jury any time before an indictment has been filed. The certification that an indictment has been voted is not the same as filing and does not, according to the statute terminate defendant’s opportunity to exercise his right to testify before the grand jury.

But this poses a problem for the District Attorney, because a defendant who wishes to testify before a grand jury is entitled to testify before a grand jury comprised of grand jurors that have not heard evidence in the matter and voted to indict him (see, People v. Evans, 79 N.Y.2d 407 [1992]; see also, People v. Quick, 48 A.D.3d 1223 [4th Dept. 2008]; People v. Neely, 248 A.D.2d 996 [4th Dept. 1998]). None of these cases condition defendant’s right to testify on giving notice at the earliest possible moment or, for that matter, within the time-frame or by whatever deadline the District Attorney attempts to impose (in the absence of any statutory or decisional authority). The legislatively-imposed cutoff on defendant’s right to testify is the filing of the indictment. Short of that, the District Attorney lacks the authority to deny defendant’s request to testify as untimely.