Opinion
No. KA 05-00240.
February 8, 2008.
Appeal from an order of the Supreme Court, Monroe County (Joseph D. Valentino, J.), dated December 15, 2004. The order granted the motion of defendant to dismiss the indictment.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR APPELLANT.
SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, SR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, the motion is denied, the indictment is reinstated and the matter is remitted to Supreme Court, Monroe County, for further proceedings on the indictment.
Memorandum: The People appeal from an order granting defendant's motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) and 210.35 (4). We agree with the People that, because they provided defendant with the requisite notice that the matter was to be presented to a grand jury and defendant failed to notify them of his intent to testify ( see CPL 190.50 [a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorney from the Public Defender's office, was arraigned on the underlying felony complaint on November 6, 2004. At that arraignment, defendant was furnished with a written notice of presentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, the Public Defender's office discovered a conflict of interest in its representation of defendant, and the following day another attorney was assigned to represent defendant. That attorney did not notify the People of defendant's intent to testify before the grand jury.
We conclude that defendant had sufficient time to consult with defense counsel prior to the filing of the indictment and, because neither defendant nor defense counsel notified the People that defendant intended to testify before the grand jury, defendant was not deprived of the right to testify ( see People v Johnson, 46 AD3d 1384; see also People v Lyons, 40 AD3d 1121, 1122-1123, lv denied 9 NY3d 878; cf. People v Evans, 79 NY2d 407, 415).
[ See 6 Misc 3d 1002(A), 2004 NY Slip Op 516990(U).]