| People v Johnson |
| 2007 NY Slip Op 10245 [46 AD3d 1384] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Christopher B.Johnson, Respondent. |
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Appeal from an order of the Supreme Court, Monroe County (Joseph D. Valentino, J.), datedJune 29, 2006. The order granted defendant's motion to dismiss the indictment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law, the motion is denied, the indictment is reinstated and the matter is remittedto Supreme Court, Monroe County, for further proceedings on the indictment.
Memorandum: The People appeal from an order granting defendant's motion to dismiss theindictment pursuant to CPL 190.50 (5); 210.20 (1) (c); and 210.35 (4). According to the People,they provided defendant with the requisite written notice that the matter was to be presented to agrand jury and, because defendant did not notify them of his intent to testify (see CPL190.50 [5]), Supreme Court erred in granting defendant's motion. We agree. Defendant wasarraigned in Rochester City Court on February 24, 2006 and was given the requisite writtennotice that the matter would be presented to a Monroe County grand jury on February 28, 2006.Defendant and his attorney appeared in City Court on March 1, 2006, at which time theprosecutor filed a certification indicating that the grand jury had voted to indict defendant oncharges arising from the incident, but the indictment was not filed until March 24, 2006. We thusagree with the People that defendant had sufficient time in which to consult with his attorneyprior to the filing of the indictment and, because neither defendant nor his attorney notified theprosecutor that defendant wished to appear before the grand jury, defendant was not deprived ofthe right to testify (see People vLyons, 40 AD3d 1121 [2007], lv denied 9 NY3d 878 [2007]; cf. People vEvans, 79 NY2d 407, 413-415 [1992]). Present—Martoche, J.P., Smith, Centra,Peradotto and Green, JJ.