133 Misc. 2d 320 | N.Y. Sup. Ct. | 1986
OPINION OF THE COURT
A request to testify before the Grand Jury must be specific and unequivocal before the court can entertain a motion to dismiss the indictment pursuant to CPL 190.50 (5) (a).
facts
Defendant Phillip Leggio, a New York City police officer,
ARGUMENT
Defendant claims that the Grand Jury proceeding was defective within the meaning of CPL 210.35 and 190.50 (5) on the ground that he was denied the opportunity to testify on his own behalf. The crux of defendant’s claim centers around a letter which his attorney wrote to the special narcotics prosecutor. Dated June 18, 1986, the letter states in pertinent part: "Please take notice that the defendant Phillip Leggio reserves his right to testify upon notice to this office of presentment of evidence against Mr. Leggio before the aforesaid grand jury”. Defendant Leggio argues that the prosecutor was not forthcoming regarding Grand Jury action against him and that his "request” to testify as denoted in the letter was completely ignored.
ANALYSIS
CPL 190.50 (5) (a) provides: "When 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 if, prior to the filing of any indictment * * * he serves upon the district attorney * * * a written notice making such request and stating an address to which communications may be sent
The issue raised in this case is whether such proper request evincing Leggio’s desire to testify before the Grand Jury was ever made. In my view it was not. The letter of June 18th only states that the defendant "reserves” his right to testify. That communication merely reiterates a right which the Legislature created for any defendant in Leggio’s position. I hold that in order to effectuate that right, the defendant must activate it in an affirmative manner by making an unqualified, specific request to come before the Grand Jury and testify. It is only then that defendant’s right to testify accrues. (Once a proper request is made and served upon prosecutor the latter is required to notify the defendant that he may be heard by the Grand Jury at a specified time and place [CPL 190.50 (5) (b)].) "Reserving” one’s right to testify, as Leggio did, and "requesting” to appear before the Grand Jury, as the statute requires, are not synonymous. Since defendant’s letter did not constitute a request to testify within the meaning of the statute, the prosecutor had no obligation to notify Leggio to appear before the Grand Jury.
Accordingly, defendant’s motion to dismiss the indictment on the ground that his right to testify was circumvented by the prosecutor is denied.