OPINION OF THE COURT
The issue on this appeal is whether the motion court correctly dismissed the indictment on the ground that defendant was wrongfully deprived of his right to testify before the grand jury. CPL 190.50 (5) (a) provides in pertinent part:
“When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment ... he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. ... In such case, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein.”
“The concept of reasonableness is flexible and must be applied to the particular facts of a case as known at the time” (People v Sawyer, 96 NY2d 815, 816 [2001]).
In January 2006 in Manhattan Criminal Court, defendant was convicted of reckless driving and reckless endangerment, despite having testified on his own behalf. On March 16, 2006 he was sentenced to a conditional discharge and 10 days of community service, instead of the 60 days concurrent with three years’ probation that the prosecutor sought. The prosecutor, who believed that defendant had lied at trial, then decided to seek a perjury indictment. The particular facts at issue occurred in the three-week period between March 28 and April 18, 2006. It should be noted from the outset that the holidays of Passover (April 13-20) and Good Friday (April 14) fell during that period and that defendant is an observant Jew who had recently emigrated from Israel.
Defendant subsequently moved to dismiss the indictment on grounds that the People’s conduct violated his right to testify before the grand jury by forcing him to choose between it and his free exercise of religion. The People opposed, arguing, among other things, that the statute does not give defendant the right to choose the dates and that the People gave notice of the opportunity to testify on three different dates before Passover, which met their statutory duty to provide him a reasonable time to exercise his right to testify; that as per the submitted affidavit of a self-described Orthodox rabbi, Jewish law did not prohibit defendant’s traveling and testifying on the intermedi
Upon review of the record, it appears that the indictment was correctly dismissed with leave to re-present. Under these unique circumstances, i.e., the narrow time frame wherein defendant had to obtain satisfactory new counsel and the onset of the eight-day religious festival, the People did not offer defendant a reasonable or meaningful opportunity to testify before the grand jury. Contrary to the People’s contention, the record shows no lack of diligence by defendant in obtaining new counsel or by his successive counsels in communicating with the prosecutor in efforts to schedule defendant’s testimony, and that the tenor of counsels’ conduct was cooperative, not dilatory or evasive. Thus, this case is readily distinguishable from cases such as People v Watkins (40 AD3d 290, 290 [2007], lv denied 9 NY3d 870 [2007] [dismissal properly denied where defense counsel’s conduct in scheduling defendant’s grand jury appearance found to be “deliberately dilatory and evasive”]), People v Brown (32 AD3d 737 [2006], lv denied 8 NY3d 844 [2007] [dismissal properly denied where defense counsel failed to make his whereabouts known to prosecutor on morning presentment was completed and never explained his failure to timely appear]), People v Malik (6 AD3d 313 [2004], lv denied 3 NY3d 709 [2004] [dismissal properly denied where defendant missed scheduled grand jury appearance due to failure to remain in contact with counsel]), People v Edwards (283 AD2d 219 [2001], lv denied 96 NY2d 918 [2001] [dismissal properly denied due to inadequacy of defense counsel’s communications with prosecutor in the scheduling of defendant’s grand jury appearance]) and People v Patterson (189 AD2d 733, 734 [1993], lv denied 81 NY2d 975 [1993] [dismissal properly denied where “counsel repeatedly failed to return the ADA’s phone calls” in effort to schedule defendant’s grand jury appearance]).
The People insisted that defendant testify on a date that conflicted with his professed religious obligations, even though a date was available that came after the end of defendant’s period of religious observance (April 21). The People did not establish that there was anything unsuitable about the April 21 date. They err in contending that it was Good Friday and would thus present additional scheduling problems; as noted, Good Friday was April 14. Although the People had originally offered three
The motion court properly declined to inquire into whether defendant correctly perceived his religious obligations or consistently observed them (see Thomas v Review Bd. of Indiana Employment Security Div., 450 US 707, 715-716 [1981]; Lightman v Flaum, 97 NY2d 128, 137 [2001], cert denied 535 US 1096 [2002]), there was no evidence that his claim was insincere (compare People v Cooke, 292 AD2d 167 [2002], lv denied 98 NY2d 636 [2002]), and the People failed to show a compelling state interest warranting the imposition of a burden on his religious practice (see Thomas, 450 US at 718).
Given the foregoing, as well as the motion court’s grant of leave to re-present before another grand jury, we see no basis for disturbing its order. A flexible application of the concept of reasonableness to the particular facts before us, as per Sawyer, cuts in favor of defendant, who sought nothing more than to exercise his statutory right to testify before the grand jury consistent with his federal and state constitutional rights to representation by counsel of his choice and the free exercise of his religion. He was forthright and diligent in addressing these issues, and there was no apparent intention to be evasive, uncooperative or to act in bad faith, nor did his conduct effect a waiver of his right.
Accordingly, the order of the Supreme Court, New York County (Michael J. Obús, J.), entered on or about July 27, 2006, which granted defendant’s motion to dismiss the indictment, with leave to re-present, should be affirmed.