        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1247
KA 10-01590
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MISAIAH HYMES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered July 15, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted and the
indictment is dismissed without prejudice to the People to re-present
any appropriate charges under the sole count of the indictment to
another grand jury.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]). We agree with defendant 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. The prosecutor notified defendant and his counsel at the
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day, defense counsel notified the court that he could no longer
represent defendant due to a conflict of interest.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 defendant, he was
assigned new counsel. Defense counsel objected to the short notice of
the grand jury proceeding and gave the prosecutor written notice of
defendant’s intent to testify. The prosecutor offered defendant the
opportunity to testify before the grand jury before it filed the
indictment, but refused defendant’s request to testify before a
different grand jury.

     We agree with defendant that he was not given “reasonable time to
exercise his right to appear as a witness” before the grand jury (CPL
190.50 [5] [a]). “CPL 190.50 (5) (a) does not mandate a specific time
period for notice; rather, ‘reasonable time’ must be accorded to allow
                                 -2-                          1247
                                                         KA 10-01590

a defendant an opportunity to consult with counsel and decide whether
to testify before a [g]rand [j]ury” (People v Sawyer, 96 NY2d 815,
816, rearg denied 96 NY2d 928). Under “the particular facts” of this
case (id.), including the less than 24 hours’ notice of the grand jury
proceeding and assigned counsel’s withdrawal from representation, we
conclude that defendant did not have reasonable time to consult with
counsel and decide whether to testify before the case was presented to
the grand jury (see People v Degnan, 246 AD2d 819, 820; see also
People v Fields, 258 AD2d 593, 594; cf. Sawyer, 96 NY2d at 817).




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
