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DEFENDANT WAS NOT GIVEN TIME TO EXERCISE HIS RIGHT TO APPEAR BEFORE THE GRAND JURY; INDICTMENT WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined defendant was not accorded a reasonable time to exercise his right to appear before the grand jury and affirmed the dismissal of the indictment:

… [T]he People were required pursuant to CPL 190.50 (5) (a) to “accord . . . defendant a reasonable time to exercise his right to appear as a witness” before the grand jury. The statute “does not mandate a specific time period for notice; rather ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” … . As County Court duly recognized, defendant had no such opportunity, for the order assigning counsel was not initially provided to [the conflict defender] by the local court. Defendant, who remained incarcerated, was in no position to know that the appointment order had been misdirected. Nor did the generic presentment notice issued by the People … clarify matters, as it was sent to a number of attorneys, including [the conflict defender]. The People contend, nonetheless, that defendant had an opportunity to testify after the grand jury vote but before the indictment was filed pursuant to CPL 150.5 (5) (a). That contention is unavailing because, under the circumstances presented, defendant was deprived of an opportunity to testify before the grand jury voted … . People v Clark, 2020 NY Slip Op 02204, Third Dept 4-9-20

 

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QUESTION OF FACT WHETHER PLAINTIFF ACTED TO MITIGATE ITS DAMAGES FROM THE BREAKDOWN... AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED...