Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Dale R. RIGBY, Defendant–Appellant.
Timothy J. Brennan, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Timothy J. Brennan, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of two counts of reckless endangerment in the first degree (Penal Law § 120.25), defendant contends that the indictment must be dismissed because the prosecutor failed to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges. We note at the outset that defendant's contention concerns the integrity of the grand jury proceeding ( see generally People v. Hill, 5 N.Y.3d 772, 773, 801 N.Y.S.2d 794, 835 N.E.2d 654), and it therefore survives defendant's guilty plea ( see People v. Gilmore, 12 A.D.3d 1155, 1155–1156, 785 N.Y.S.2d 231). Nevertheless, we conclude that the prosecutor properly informed the grand jury of defendant's request to call a witness ( seeCPL 190.50[6]; cf. Hill, 5 N.Y.3d at 773, 801 N.Y.S.2d 794, 835 N.E.2d 654;People v. Calkins, 85 A.D.3d 1676, 1677, 925 N.Y.S.2d 773). The record establishes that defendant requested in writing that the grand jury cause a certain person to be called as a witness, and the prosecutor read defendant's request verbatim to the grand jury and afforded the grand jury the opportunity to determine whether it wanted to hear testimony from that person. By pleading guilty, defendant forfeited his further contention that the indictment should be dismissed because the prosecutor failed to introduce exculpatory evidence before the grand jury ( see People v. Crumpler, 70 A.D.3d 1396, 1397, 894 N.Y.S.2d 303,lv. denied14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.