Lawyer: Decision to testify imminent

Updated: July 28, 2009, 12:54 PM ET
ESPN.com news services

The attorney for Plaxico Burress said Monday night that he and the former New York Giants receiver, who shot himself in the thigh at a nightclub last year, have been discussing whether Burress will testify before the grand jury.

Benjamin Brafman told ESPN's Sal Paolantonio that he expects the two to reach a decision by Tuesday.

"If he testifies, it will be Wednesday morning," Brafman said.

Earlier Monday, Manhattan's district attorney said he wants Burress to serve time in prison, the New York Post reported.

Robert Morgenthau told the newspaper that Burress, who shot himself with an unlicensed gun early on the morning of Nov. 29, was willing to agree to spend a year in jail, but prosecutors insisted on two, the Post reported.

"We've always taken the position that he's going to have to go to jail, whether by trial or by plea," Morgenthau told the Post.

Burress is charged with criminal possession of a weapon and faces up to 3 years in prison. He has pleaded not guilty and is free on $100,000 bail. The Giants released Burress in April.

Brafman said earlier Monday that he was "disappointed and surprised" that Morgenthau spoke publicly while a grand jury decision on indicting Burress is pending.

"My concern is that the comments by the district attorney's office may have irreparably prejudiced those proceedings," Brafman said Monday. "I am now considering the legal options available to respond."

Brafman had previously said he no longer thought the matter would be resolved through a plea agreement and that prosecutors would take the case to a grand jury. He also said Burress would plead not guilty if the case went to trial.

"The comments by DA Morgenthau are completely out of character and show a lapse in judgment," Brafman said.

Burress, who caught the winning touchdown in the final minute for the Giants in the 2008 Super Bowl, also could face disciplinary action by NFL commissioner Roger Goodell under the league's personal conduct policy.

Burress has yet to sign with another team and Goodell's office announced in June that the league already had started its examination of the incident.

Information from The Associated Press and ESPN's Sal Paolantonio was used in this report.

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