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THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a People’s appeal, determined the district attorney violated the Criminal Procedure Law by refusing to tell the grand jury defendant had requested that two witnesses give testimony, but the violation did not warrant dismissal of two counts of the indictment. The decision includes a detailed discussion of the district attorneys duties and discretion with respect to a defendant’s request for witness testimony before a grand jury:

… [A] prosecutor may not “suppress[ a] defendant’s request to call . . . witness[es] nor strip[ ] the grand jury of its discretion to grant or deny that request” … . Instead, “[a]lthough [a] prosecutor [cannot] avoid presenting [a requested] witness’s name for a vote, the prosecutor [is] free, in the role of advisor to the grand jury, to explain that the witness [does] not have relevant information [or] primarily offer[s] inadmissible hearsay testimony, and if unpersuasive in this effort, the prosecutor [may seek] a court order quashing the subpoena or limiting the witness’s testimony as provided in CPL 190.50 (3)” … . … [T]he court properly determined that the People, despite their stated concerns about the admissibility of the proposed testimony, violated their statutory obligation by refusing to present to the grand jury defendant’s request that two of the vehicle’s other occupants be called as witnesses. * * *

We … conclude that “this was not one of the rare cases of prosecutorial misconduct entitling a defendant to the exceptional remedy of dismissal, because there is no showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” … . … [T]he People did not engage in an overall pattern of willful and pervasive misconduct; instead, the failure to present defendant’s request for witnesses to the grand jury constituted an isolated instance of misconduct involving, at worst, the erroneous handling of an evidentiary matter, which “do[es] not merit invalidation of the indictment” … . People v Wilcox, 2021 NY Slip Op 02893, Fourth Dept 5-7-21

 

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