| People v Tole |
| 2012 NY Slip Op 03236 [94 AD3d 1334] |
| April 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Kuidon Tole,Respondent. |
—[*1] John Ferrara, Monticello, for respondent.
Malone Jr., J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.),entered June 15, 2011, which granted defendant's motion to dismiss the indictment.
After defendant was accused of unlawfully possessing contraband while an inmate at theSullivan County Jail, the People served, by mail, a grand jury notice on defendant's counselapproximately one week prior to presentment, informing him that written notice of defendant'sintent to testify before the grand jury was due no later than one day prior to presentment. ThePeople did not receive such notice from defendant and an indictment was subsequently filedcharging defendant with promoting prison contraband in the first degree. At arraignment,defendant argued that he had intended to testify before the grand jury but that he had not receivedthe grand jury notice that had been forwarded to him by counsel until after presentment and, onthat basis, defendant moved to dismiss the indictment. County Court ultimately granteddefendant's motion, and the People appeal. We reverse.
The People provided defendant with sufficient notice of the grand jury presentment bysending notice to defense counsel approximately one week before presentment (see CPL190.50 [5] [a]; People v Ballard, 13AD3d 670, 671 [2004], lv denied 4 NY3d 796 [2005]; People v Crisp, 246AD2d 84, 86-87 [1998]). The fact that counsel did not relay the notice to defendant "within thattime does not render the People's notice unreasonable" (People v Ballard, 13 AD3d [*2]at 671; see People v Choi, 210 AD2d 495, 496-497[1994]).[FN*]Because the People did not receive timely written notice of defendant's intention to testify, theindictment was properly obtained (see People v Ballard, 13 AD3d at 671) and defendant'smotion to dismiss the indictment should not have been granted (see People v Choi, 210AD2d at 496-497).
In light of the foregoing, the People's remaining contention is academic.
Peters, P.J., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, motion denied, and indictment reinstated.
Footnote *: Notably, defense counsel did notseek an adjournment or indicate to either County Court or the People that he needed more time tocommunicate with defendant prior to presentment.