| People v Quick |
| 2008 NY Slip Op 01194 [48 AD3d 1223] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v AnthonyLamont Quick, Respondent. |
—[*1] Schiano Law Office, P.C., Rochester (Charles A. Schiano, Sr., of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Joseph D. Valentino, J.), datedDecember 15, 2004. The order granted the motion of defendant to dismiss the indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion 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 theindictment 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 agrand jury and defendant failed to notify them of his intent to testify (see CPL 190.50 [5][a]), Supreme Court erred in granting the motion. Defendant, represented by an assigned attorneyfrom the Public Defender's office, was arraigned on the underlying felony complaint onNovember 6, 2004. At that arraignment, defendant was furnished with a written notice ofpresentment to a Monroe County grand jury on November 9, 2004. On November 8, 2004, thePublic Defender's office discovered a conflict of interest in its representation of defendant, andthe following day another attorney was assigned to represent defendant. That attorney did notnotify 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 thefiling of the indictment and, because neither defendant nor defense counsel notified the Peoplethat defendant intended to testify before the grand jury, defendant was not deprived of the right totestify (see People v Johnson, 46AD3d 1384 [2007]; see also Peoplev Lyons, 40 AD3d 1121, 1122-1123 [2007], lv denied 9 NY3d 878 [2007];cf. People v Evans, 79 NY2d 407, 415 [1992]). Present—Hurlbutt, J.P., Martoche,Smith, Lunn and Peradotto, JJ. [See 6 Misc 3d 1002(A), 2004 NY Slip Op 51699(U).]