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DEFENDANT MADE A VALID REQUEST TO APPEAR IN THE GRAND JURY BEFORE THE AMENDED INDICTMENT WAS FILED; THE FACT THAT DEFENDANT HAD PREVIOUSLY DECLINED THE OPPORTUNITY TO TESTIFY WAS OF NO SIGNIFICANCE (FOURTH DEPT). ​

The Fourth Department, dismissing the indictment, determined defendant should have been allowed to testify before the grand jury:

CPL 190.50 (5) (a) provides that a defendant’s request to testify is timely as long as it is made prior to the filing of the indictment” … . Here, defendant’s June 8, 2017 notice, which ” ‘satisfied the statutory requirements for notifying the People of a request to appear before the grand jury’ ” … , was received by the District Attorney on the same day, prior to the filing of the amended indictment on June 9, 2017. Contrary to the contention of the People and the rationale of the court, it is of no moment under the statute that defendant had previously declined the opportunity to testify … . “Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised” … . People v Royal-Clanton, 2021 NY Slip Op 04856, Fourth Dept 8-26-21

 

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