Court Says Religious Conflict With Grand Jury Appearance Justifies Dismissal

In People v. Shemesh, (NY App. Div., Jan. 15, 2008), a New York appellate court in a 3-2 decision affirmed a lower court's dismissal of a grand jury indictment on free exercise grounds. Defendant asserted his right to appear before the grand jury that was considering handing down a perjury indictment against him. However he ultimately did not testify because the prosecutor refused to reschedule his appearance to prevent a conflict with defendant's observance of Passover. The majority held that "under these unique circumstances ... the People did not offer defendant a reasonable or meaningful opportunity to testify before the grand jury." The two dissenters argued that defendant's belated rejection of various other acceptable dates to testify raised a question of whether he was making a good faith effort to cooperate.