Criminal Court of the City of New York, Bronx County, January 28, 2021

Michael Mrnacaj for defendant.

Darcel D. Clark, District Attorney (Stephen Boniberger of counsel), for plaintiff.

The first question presented in this case is whether the requirement of the recently-enacted criminal justice legislation that the People disclose to a defendant any statements he made to law enforcement at least 48 hours before he testifies in the grand jury (see CPL 245.10 [1] [c]) is satisfied by the disclosure of the "sum and substance" of the statement rather than the full statement itself. This court holds that it is not.

The second question presented is, where a defendant has timely indicated his intention to testify before the grand jury, yet the prosecution does not disclose to him his videotaped statement that it has in its possession, and as a result of this failure defendant's grand jury testimony is delayed, must the defendant be released from custody pursuant to CPL 180.80. This court holds that in such a situation he must be so released.

The defendant in this case was arrested at 12:53 a.m. on October 31, 2020, and was arraigned the following day on a felony complaint. At the arraignment, the People notified the defendant in writing of their intention to present the case to a{**71 Misc 3d at 376} grand jury, and the defendant served written notice of his intention to exercise his right to testify before the grand jury. (See CPL 190.50.) The People then directed the defendant, in writing, to appear at 10:00 a.m. on November 6, 2020, to testify. The People also served statement notice pursuant to CPL 710.30 (1) (a), which consisted of a short, written expression of the "sum and substance" of a longer, videotaped statement defendant made to police after his arrest. Bail was set, and the case was adjourned to November 6, 2020, for the defendant to be released unless the prosecution satisfied one of the statutory requirements allowing for his continued detention. (See CPL 180.80.)^[FN1]

The People finally provided counsel with the defendant's complete statement, in the form of the actual video recording, at 11:07 a.m. on November 6, 2020. The parties appeared in court later that day, at which time the People indicated that they had fully presented their case to the grand jury and were ready to call the panel to vote. Defense counsel affirmed that his client still wanted to testify in the grand jury. He argued, however, that as the defendant had not been provided with his statement 48 hours in advance, he could not be required to go into the grand jury prematurely. The People countered that defendant had been provided with the "sum and substance" of his statement well in advance of the 48 hours, and that was sufficient for these purposes. The People argued that if defendant wanted more time to review the actual statement, he could waive his right to be released where an indictment has not been voted within the required time period. (See CPL 180.80.) Defense counsel argued that the recently-enacted legislation mandates that the People disclose the actual statement in its entirety, and not just a summary prepared by a prosecutor. (See CPL 245.10 [1] [c].) Counsel reasoned that the People's failure to turn over the statement made it impossible for his client to fully exercise his right to testify in the grand jury, and{**71 Misc 3d at 377} that to require him to forfeit his CPL 180.80 rights in exchange for his right to testify in the grand jury was not what the legislature intended. He thus moved for his client to be released pursuant to CPL 180.80.

As this issue required a thorough analysis and yet an immediate decision, this court ruled orally from the bench, with an indication that a written decision would follow. The parties were invited to provide written submissions should they wish, but neither elected to do so. For the reasons stated at the bench and more thoroughly herein, the People's unjustified failure to disclose the defendant's complete statement at least 48 hours before the expiration of the CPL 180.80 period meant that, because of their own actions, the People could not have the grand jury vote on this case without violating defendant's rights. This court therefore released defendant pursuant to CPL 180.80.

In New York State, felony charges can be brought by means of a felony complaint, which is a written accusation that may be based entirely upon hearsay, and even upon vague, conclusory, unattributed allegations. (See CPL 100.15; People v Black, 270 AD2d 563 [3d Dept 2000].) While a felony complaint can initiate a criminal proceeding, it cannot serve as a basis for prosecution. (CPL 1.20 [8].) For a felony case to advance to trial, or even resolve by guilty plea, the prosecution must first obtain an indictment—an accusatory instrument that results from a vote of a grand jury who has heard testimony and concluded that there is sufficient evidence to [*2]accuse the defendant of a crime. (CPL 1.20 [3]; 190.65.)^[FN2] When a defendant is charged by a felony complaint, and the People serve notice that they intend to present the case to a grand jury, a defendant has the right to testify before the grand jury. (CPL 190.50.)

A felony complaint allows a defendant to be held in custody for only a limited amount of time. Upon arraignment on a felony complaint, a defendant cannot be held in custody beyond a maximum of 144 hours (exactly six days, to the hour) from the time of arrest on the basis of the felony complaint alone. (CPL 180.80.) Significantly, the time limit prescribed by CPL {**71 Misc 3d at 378}180.80 is measured in hours, not days, and appellate courts have made clear that the statute "means what it says, and cannot be made subject to judicial construction translating the given hourly time frame into a less exacting interval measured by days." (People ex rel. Arshack v Koehler, 151 AD2d 309, 310 [1st Dept 1989].) "[W]here the People seek even a brief enlargement of the applicable hourly period, they must advance 'good cause', which does not mean the 'imminence' of an indictment, standing alone, as the basis for a routine extension until the close of the same business day." (Id.)

In order to justify continued detention beyond the limited period allowed by the statute, the People must secure a grand jury indictment, or alternatively obtain a ruling from a judge, after presenting evidence at an adversarial hearing, that there is reasonable cause to hold the defendant for up to 45 days until the case can be presented to a grand jury. (See CPL 180.60, 180.70, 190.80.) In either case, the government must demonstrate to a neutral decision-maker that it has sufficient evidence to accuse the defendant of a crime for the defendant to continue to be held in jail. (CPL 180.80.)

The requirement that a defendant not be held longer than 144 hours unless an indictment is obtained or a probable cause hearing held, although a statutory rule, gives effect to a vital constitutional right. The Fourth Amendment requires a determination of probable cause as a prerequisite to extended restraint of liberty following arrest. (Gerstein v Pugh, 420 US 103 [1975].) Whatever procedure a state may employ, be it grand jury, adversarial hearing or other judicial determination, and whatever specific time period in which the state requires this be done—in New York, 144 hours—the state "must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint." (Id. at 125.)

The institution of the grand jury reaches as far back as twelfth century England, when the common law itself was developing. (Carlson v United States, 837 F3d 753 [7th Cir 2016], citing Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla St U L Rev 1 [1996], and Alfredo Garcia, The Fifth Amendment: A Comprehensive and Historical Approach, 29 U Tol L Rev 209, 227-234 [1998].) Initially functioning as part of the{**71 Misc 3d at 379} accusatory arm of the government, by the seventeenth century the grand jury had evolved into a safeguard for citizens against an overreaching Crown and unfounded accusations. (Butterworth v Smith, 494 US 624 [1990], citing 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 1:02 at 5-8 [1986].)

New York law protects the right of a person who is the subject of a grand jury proceeding to testify on his own behalf. The Criminal Procedure Law provides that "[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf." (CPL 190.50 [5] [a].) Although this is a statutory right, not a constitutional one, it is an important right that "must be scrupulously protected." (People v Brumfield, 24 NY3d 1126, 1128 [2015], quoting People v Smith, 87 NY2d 715, 721 [1996]; see also People v Corrigan, 80 NY2d 326, 332 [1992].) Section 190.50 requires that a prosecutor must afford a defendant "reasonable time" to exercise the right to appear as a witness in the grand jury. (CPL 190.50 [5] [a].) The violation of a defendant's properly invoked grand jury rights may result in dismissal of the indictment. (See CPL 190.50 [5] [c]; Brumfield, 24 NY3d at 1128.) Provided that a defendant serves timely notice of his desire to testify in the grand jury, the prosecutor must not vote the case without affording him that opportunity. (People v Evans, 79 NY2d 407, 414 [1992] [defendant's right to testify is not satisfied by reopening proceedings to allow defendant's testimony after grand jury has already voted]; see CPL 190.50 [5] [b].)

Even while acknowledging the challenges that CPL 180.80 imposes upon prosecutors, the Court of Appeals in Evans affirmed that such challenges provide no cause to diminish a defendant's legal rights. The Court explicitly refused to "give legal effect to the practical difficulties the prosecution may encounter in satisfying its obligations under CPL 180.80," and specifically held that "[t]he failure of the Department of Correction to produce defendants" in time to testify to the grand jury before the expiration of the CPL 180.80 period "provides no excuse or good cause for the District Attorney's failure to give effect to a properly invoked right under CPL 190.50 (5)." (79 NY2d at 414; see also People v Coaxum, 164 Misc 2d 458, 461 [Sup Ct, Bronx County 1995].)

A defendant's right to testify in the grand jury, guaranteed by CPL 190.50, exists parallel to his right not to be held beyond{**71 Misc 3d at 380} 144 hours without an indictment or probable cause hearing as provided by CPL 180.80. Under Evans, an accused person is not required to choose one right or the other.

In 2019 and 2020, groundbreaking criminal justice reform legislation went into effect in New York State. The comprehensive package of new legislation involved significant changes to bail laws, revisions to procedural rules, and expansion of a defendant's discovery rights. The clear overarching intent of the new legislation was to increase fairness and to expand and protect the rights of accused persons.

The legislature's complete overhaul of New York's discovery laws and creation of a new system of early and broad discovery was specifically intended to "eliminate the unfairness and inefficiencies of current discovery practice and facilitate the prompt and accurate disposition of criminal cases." (Comm Rep, 2019 NY Assembly Bill A01431.) As the Assembly Committee Report accompanying the legislation stated, under the old statutes, "[t]he limited information disclosed [was] often turned over so late that it [was] impossible for defense counsel to intelligently investigate, secure and use any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an appropriate trial strategy." (Id.) Indeed, the practice of criminal [*4]law in New York had previously been likened by defense attorneys to "trial by ambush." The defense received very little information, and much of what the defense did have a right to receive could be provided minutes before trial was to begin. The new discovery laws significantly expanded what materials a defendant has the right to receive and advanced the deadlines for when those disclosures must be made by the prosecution.

One notable provision of the new law is that an accused person now has a right to receive any statement that he made to law enforcement, 48 hours before he testifies in a grand jury proceeding concerning his case. The new statute reads:

"The 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{**71 Misc 3d at 381} 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].)

The specific statements that must be disclosed under this provision are: "All written or recorded statements, and the substance of all oral statements, made by the defendant . . . to a public servant engaged in law enforcement activity or to a person then acting under his or her direction or in cooperation with him or her." (CPL 245.20 [1] [a].)

[1] The prosecution in this case takes the position that merely providing the "sum and substance" of the defendant's statements, as here was provided at arraignment in the form of CPL 710.30 (1) (a) notice, satisfies their obligation under CPL 245.10 (1) (c). This is contrary to the plain language of the statute, which expressly requires disclosure of all "written or recorded statements, and the substance of all oral statements." (CPL 245.20 [1] [a]; 245.10 [1] [c].) This statutory language in no way suggests that providing only the "sum and substance" of written or recorded statements is sufficient. Rather, the statute on its face plainly requires disclosure of written and recorded statements themselves. "[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used." (People v Williams, 19 NY3d 100, 103 [2012]; People v Finnegan, 85 NY2d 53, 58 [1995].) Here the statute unambiguously requires disclosure of the actual written and recorded statements themselves. (People v Carswell, 67 Misc 3d 444 [Crim Ct, Bronx County 2020].)

The prosecution here also argued that CPL 245.10 (1) (c) requires only that the defendant be given "notice" of his prior statements before his grand jury testimony. However, the plain wording of the statute provides no basis for such an interpretation. Unlike CPL 710.30, the word notice appears nowhere in CPL 245.10 (1) (c). The prosecution's interpretation would equate the two statutes. To the contrary, the statutes are very different, and serve entirely different purposes. In contrast to CPL 710.30, which applies only to statements the prosecution intends to use at trial and does not require disclosure of the actual statements beyond what is necessary to "specify[ ] the evidence intended to be offered" (CPL 710.30 [1] [a]), CPL {**71 Misc 3d at 382}245.10 (1) (c) compels disclosure of the defendant's statements themselves, regardless of any evidentiary use the prosecution may intend [*5]to make of them. The purpose of CPL 710.30 is merely to notify the defendant that the prosecution intends to use certain statements against him at trial, so that the defendant can make a motion to suppress if he wishes. The purpose of CPL 245.10 (1) (c) is to give full expression to a defendant's right to testify in the grand jury, by imbuing the procedure with some of the hallmarks of fairness that we associate with due process, and not just an opportunity for the prosecution to trap someone.

Reading CPL 245.10 and 245.20 together, it is clear that with subsection 245.10 (1) (c), the legislature intentionally singled out one narrow category (defendant's own statements) from among the broad range of materials subject to automatic disclosure, and significantly accelerated the time for disclosure of this one category in the single circumstance of where a defendant has been arraigned on a felony complaint and is scheduled to testify before a grand jury pursuant to CPL 190.50 (5). From this, it is evident that the specific purpose of the disclosure mandated by CPL 245.10 (1) (c) is to effectuate the defendant's right to testify on his own behalf in a grand jury proceeding. The necessity of the very short time frame imposed by CPL 245.10 (1) (c)—indeed, measured in hours—is apparent in light of this unique and specific purpose of the narrow disclosure mandated by this subsection.

Whether to testify in the grand jury is a strategic decision of critical importance, as it can have a major impact on the case. (People v Hogan, 26 NY3d 779 [2016].) A defendant's testimony could potentially result in dismissal of some or all of the charges. However, if indicted, his grand jury testimony could prove damaging to his defense and even foreclose his ability to testify at a later trial. Counsel must "weigh[ ] the possibility of a dismissal . . . against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses." (Hogan, 26 NY3d at 786, quoting People v Brown, 116 AD3d 568, 569 [1st Dept 2014].) The Court of Appeals has held that whether a defendant should testify in the grand jury is ultimately an important strategic decision for defense counsel. (Hogan, 26 NY3d 779.) "[B]efore a defense attorney makes such a critical decision, counsel should have the opportunity to view the actual video recording of a defendant's{**71 Misc 3d at 383} statements in its entirety." (Carswell, 67 Misc 3d at 449.) Only by viewing the actual recording can counsel fully understand not just the words spoken by his or her client, but also the context and circumstances in which the statements were made, including any questions to which the statements were made in response, and thus be able to provide meaningful and informed advice to his or her client.

[2] It is true that CPL 245.10 (1) (c) imposes an additional burden on prosecutors, to the extent that it mandates an evidentiary disclosure at least 48 hours prior to the time the defendant is scheduled to testify in the grand jury—which, in practice, will often be scheduled during the last hours before CPL 180.80 expires. However, as the Court of Appeals recognized in Evans, a prosecutor's practical challenges meeting the requirements of CPL 180.80 necessary to continue a defendant's detention do not provide cause to lessen those requirements. (79 NY2d at 414.) A prosecutor, by electing to race into the grand jury in an effort to secure an indictment within 144 hours of the defendant's arraignment in order to prevent the defendant's release, may not in so doing curtail the defendant's right to testify in the grand jury. (Id.) Nor may the prosecutor by such action restrict the defendant's statutory right to testify in the grand jury after having the opportunity to prepare with his counsel, which includes counsel having the chance to review his or her client's statements, as the statute mandates that the prosecutor must provide. (CPL 245.10 [1] [c].){**71 Misc 3d at 384}

The People in this case offered no justification for withholding the recording of the defendant's statements beyond their contention that they were not obligated to disclose it.^[FN3] They further argued that even if they had violated their obligation under CPL 245.10 (1) (c), the proper remedy was not defendant's release pursuant to CPL 180.80, but rather for the defendant either to waive his discovery rights that the People had already violated and go into the grand jury without the opportunity for his attorney to review his recorded statement, or instead to waive his CPL 180.80 rights and remain in jail in order to have the opportunity to review the recording with his attorney before testifying. The "remedy" urged by the People would render both CPL 245.10 (1) (c) and CPL 180.80 meaningless and require the defendant to decide which of his rights to forgo. Moreover, by the logic of the prosecution in this case, there would be nothing to stop a prosecutor from withholding a defendant's statement for months, and requiring the defendant to waive his CPL 180.80 rights and remain in jail as the price of seeing it before his grand jury testimony. It is inconceivable that the legislature intended that an incarcerated defendant could avail himself of this new right under CPL 245.10 (1) (c) only if he chose to remain in jail longer, while a defendant who had not been held in on bail would not have to make such a choice.

Therefore, where, as here, the People are required to disclose a defendant's statements pursuant to CPL 245.10 (1) (c) and unjustifiably fail to do so, and as a direct result of that failure the defendant's testimony before the grand jury pursuant to CPL 190.50 (5) must be delayed beyond the time set by CPL 180.80, the People have not met their obligations pursuant to CPL 180.80, and the defendant must be released in accord with the express terms of CPL 180.80.