People v. Misaiah Hymes: New York Appellate Division, Fourth Department holds that 24 hour notice, counsel withdrawal, renders notice of Grand Jury presentment unreasonable under CPL §190.50.

by Soma Sengupta

Misaiah Hymes appealed from a judgment convicting him upon a jury verdict of burglary in the second degree. Mr. Hymes had moved to dismiss the indictment in his case pursuant to CPL 210.20 (1)(c) on the ground that he was denied his right to testify before the grand jury. Mr. Hymes and his counsel were notified by the prosecutor at arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict, Mr. Hymes was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of Mr. Hymes’ intent to testify. The prosecutor offered Mr. Hymes the opportunity to testify before the grand jury before it filed the indictment, but refused his request to testify before a different grand jury.

A unanimous Fourth Department panel agreed with Mr. Hymes “that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20(1)(c) because he was denied his right to testify before the grand jury” and that he had not been given “reasonable time to exercise his right to appear as a witness”. The Court noted that while CPL §190.50 (5) (a) does not mandate a specific time period for notice, “‘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”. The Court concluded that ”[u]nder “the particular facts” of this case, including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation”, that Mr. Hymes “did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury”.

Timothy Donaher, Public Defender appeared for Mr. Hynes. Robert J. Shoemaker appeared for Rochester District Attorney Sandra Doorley.