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The Manhattan District Attorney’s Office has come under fire from defense groups for allegedly ignoring defendants’ rights to appear before a grand jury. “If it’s too late in the day or too difficult to get a defendant down to the grand jury, prosecutors will just go ahead with a vote,” said Michael Coleman, executive director of New York County Defender Services. Manhattan prosecutors regularly consent to motions to dismiss because defendants were not afforded an opportunity to testify, but that takes “one, two or three months,” he added. It is a bureaucratic problem that appears with more frequency at the end of a grand jury’s term, when delays caused by producing defendants are more likely to impair the grand jury’s ability to complete work on cases before it is disbanded, said Irwin Shaw, who is in charge of the Legal Aid Society’s criminal defense operation in Manhattan. A delegation from the Criminal Courts Committee of the Association of the Bar of the City of New York brought the problem to the attention of James M. Kindler, chief assistant district attorney in Manhattan. Mr. Kindler, in an interview Friday, said he met with the committee but rejected its characterization that the district attorney’s office had a policy of not respecting defendants’ rights to appear before a grand jury. Time constraints imposed by the Criminal Procedure Law (CPL) require the release of incarcerated defendants if indictments are not returned within five or six days, depending on whether a weekend is involved. Because of that deadline, Mr. Kindler said, sometimes indictments are sought even though it is not possible to get defendants and their lawyers into the grand jury room in time. Often, defendants are not returned to court until the last day of the deadline set under CPL �180.80 and the time to get them into the grand jury room is very short, he said. Mr. Kindler also agreed that problems crop up more frequently at the end of a grand jury’s term, when it is under pressure to resolve a large number of cases and the defendant’s testimony “can consume a lot of time.” Cases that cannot be completed before the term expires must begin anew before another grand jury. “We’re between a rock and a hard place,” Mr. Kindler said, and “we are not going to release someone” because of circumstances beyond anyone’s control. In any event, he added, defendants have a remedy because they can move to have the indictment set aside if they were not allowed to appear before the grand jury. Mr. Kindler also pointed out that notices to testify before the grand jury are filed in about two-thirds of all felony cases. In 2002, that meant about 10,000 defendants served notice of an intent to testify, but only a couple hundred actually did. But Mr. Coleman begged to differ, noting that actual harm can occur. He referred to one of his clients who had not been given a chance to appear before a grand jury. Seventy-four days passed before the defendant had another opportunity to go before a second grand jury after a motion had been filed attacking the first indictment and the prosecution had consented to it. When the defendant, who had been charged with selling drugs, finally presented his side of the story, Mr. Coleman said, the second grand jury decided not to indict, and he was released. In another case, Mr. Coleman said, a defendant in a wheelchair was indicted without an appearance because it was too difficult to get him into the grand jury room in time. There have also been instances, according to Mr. Shaw of the Legal Aid Society, where defendants felt it was so crucial to appear before the grand jury that they offered to waive the �180.80 deadline for several days, but the prosecutor went ahead and an indictment was voted. Mr. Coleman said that sometimes prosecutors move ahead to get an indictment without contacting the defense, making it impossible for the defendant to work out a waiver of the 180.80 deadline. Mr. Shaw, who headed Legal Aid’s office in the Bronx for 14 years before coming to Manhattan in 2002, said that problems in getting defendants before grand juries is “more prevalent” in Manhattan than the Bronx. “I was surprised” by the frequency with which the problem came up in Manhattan, he said. Mr. Coleman, who worked in Brooklyn for 24 years, also said the problem is more serious in Manhattan. Incarcerated defendants who prevail on motions to dismiss because they were not allowed to appear before the grand jury are not released. They remain subject to the same bail they had previously been unable to meet and the prosecution is given 45 days to re-present the case to another grand jury. The prosecution is violating “the spirit of the law,” said Mr. Shaw. There is “an obligation to seek a valid indictment, not just any old indictment,” he said.

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