Justice Richard Meyer
Kelton moved to dismiss two indictments pursuant to Criminal Procedure Law §190.50 arguing he was denied his right to appear and testify before a grand jury. He was indicted and a securing order remanded Kelton to the custody of the Essex County Sheriff pending the posting of bail. Before the preliminary hearings in both Kelton’s cases, his counsel served written notice upon prosecutors on July 18, 2013 that Kelton wished to appear as a witness at any grand jury proceeding regarding all pending felony complaints, and requested the District Attorney serve notice on counsel of any scheduled grand jury presentation. The charges in both cases were presented to the grand jury on Aug. 14, 2013, yet no evidence revealed the foreperson or any grand jury member were notified Kelton served a notice that he wished to testify. The court found neither of the notices served by prosecutors regarding potential grand jury proceedings complied with §190.50(5). It also stated that contrary to the prosecutions’ assertion, the obligation to arrange for Kelton’s production before the grand jury rested with prosecutors, not defense counsel. Thus, any indictment obtained in violation of the statutory notice and waiver provisions was invalid, and must be dismissed.
