Opinion
April 29, 1991
Appeal from the Supreme Court, Kings County (Rienzi, J.).
Ordered that the judgment is affirmed.
Under Indictment No. 2544/88, the defendant was charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts). The defendant contends that the indictment was defective and, thus, should have been dismissed because there was a six-day lapse between the time the Grand Jury was instructed on the legal principles and definitions pertinent to narcotics cases and the Grand Jury's vote to indict him. We disagree.
On April 26, 1988, the prosecutor instructed the Grand Jury on the law and terminology applicable to narcotics cases, including, inter alia, the definition of "acting in concert" (see, Penal Law § 20.00), the adequacy of which instruction the defendant does not call into question. The next day, April 27, 1988, the prosecutor presented the case concerning the defendant to the Grand Jury. Five days later, on May 2, 1988, before the Grand Jury voted and returned the indictment, the prosecutor marshaled the evidence at the Grand Jury's request. Further, after marshaling the evidence, the prosecutor expressed her willingness to clarify any terms or applicable law to the Grand Jury, but it declined the offer, demonstrating its continued understanding of the initial instructions. Accordingly, we find that the Grand Jury proceedings were not defective merely because of the six-day lapse between the prosecutor's initial instructions and the Grand Jury's vote to indict the defendant (see, People v. Calbud, Inc., 49 N.Y.2d 389, 393-396; People v. Kennedy, 127 Misc.2d 712). Indeed, the elements of the crimes with which the defendant was ultimately charged were not complex (see, Penal Law § 220.03, 220.16 Penal [1]; § 220.39 [1]).
We have considered the defendant's remaining contention and find it to be without merit (see, People v. Colon, 71 N.Y.2d 410, cert denied 487 U.S. 1239; People v. Jones, 170 A.D.2d 622; People v. Weaver, 162 A.D.2d 486; People v. Carvey, 161 A.D.2d 656, 656-657). Bracken, J.P., Sullivan, Miller and Ritter, JJ., concur.