Opinion
May 27, 1994
Appeal from the Livingston County Court, Sirkin, J.
Present — Denman, P.J., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's original attorney notified the District Attorney on August 5, 1991 that defendant's prior request to testify before the Grand Jury was withdrawn. Defendant's subsequent attorney, who represented defendant at arraignment on September 4, 1991, made no application to dismiss the indictment on the ground that defendant had been denied his right to testify before the Grand Jury. Under the circumstances, the court properly denied defendant's untimely pro se motion, made on January 30, 1992, to dismiss the indictment on that ground (see, People v Sumpter, 178 A.D.2d 973, lv denied 80 N.Y.2d 896).
The vague statements of defendant that his prior conviction for attempted burglary "was no burglary" and "should have been a * * * trespassing" were insufficient grounds for a hearing on the constitutionality of the prior conviction (see, People v Betheny, 147 A.D.2d 488). Defendant's argument concerning the court's inquiry whether prospective jurors had any opinion regarding defendant's guilt or innocence has not been properly preserved for review (see, CPL 470.05), and we decline to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).