Opinion
December 2, 1999
Judgments, Supreme Court, Bronx County (John Collins, J.).
Raffaelina Gianfrancesco and Edward F.X. Hart, for respondent.
SANGEETA PRASAD, for defendant-appellant.
ELLERIN, P.J., ROSENBERGER, NARDELLI, MAZZARELLI, FRIEDMAN, JJ.
Defendant's motion to dismiss the indictment was properly denied. Defendant failed to invoke his right to testify before the Grand Jury since he did not provide written notice of his intention to testify and there is no basis for excusing that requirement in this case (see, People v. Clay, 248 A.D.2d 180, lv denied 92 N.Y.2d 849). In any event, defendant was given more than reasonable opportunity to testify and his failure to do so was of his own creation (see, People v. Savareese, 258 A.D.2d 854, 685 N.Y.S.2d 449, lv denied 93 N.Y.2d 974 [June 8, 1999], 1999 N.Y. LEXIS 2694) because he unreasonably refused to testify on the date when he, his attorney, and the grand jurors were present.
The evidence was sufficient to establish beyond a reasonable doubt that defendant exercised dominion and control over the garage in question given that he possessed the key to the garage. Such possession permits the inference that he was constructively in possession of the stolen vehicle (see, People v. Reisman, 29 N.Y.2d 278, 285, cert denied 405 U.S. 1041). Defendant's contention that he proffered evidence that the garage was rented to a third party presented a credibility issue for the jury, which discredited such evidence.
We perceive no abuse of sentencing discretion with respect to the violation of probation.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.