| People v McKay |
| 2011 NY Slip Op 05098 [85 AD3d 821] |
| June 7, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PaulMcKay, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, andMarie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silber, J.),rendered February 26, 2009, convicting him of criminal possession of a controlled substance inthe third degree (two counts), reckless endangerment in the second degree, and reckless driving,upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of recklessendangerment in the second degree and vacating the sentence imposed thereon; as so modified,the judgment is affirmed.
The defendant's contention that he was denied his statutory right to testify before the grandjury (see CPL 190.50 [5] [a]) is without merit. The People properly notified him of thegrand jury proceeding and accorded him a reasonable time to appear (see People vSawyer, 96 NY2d 815, 816 [2001]; People v Pugh, 207 AD2d 503, 503 [1994]). Therecord supports the conclusion that his failure to testify was based on his own actions (see People v Rojas, 29 AD3d 405,406 [2006]; People v Dunham, 292 AD2d 269 [2002]; People v Quinones, 280AD2d 559, 560 [2001]; People v Clark, 267 AD2d 4 [1999]; People v Savareese,258 AD2d 484, 484 [1999]). The People rescheduled the defendant's testimony to accommodatean alleged medical condition and there is nothing in the record indicating that this medicalcondition prevented him from appearing at the rescheduled time. Under the circumstances, thePeople did not need to reschedule an additional time in order to meet their obligations under CPL190.50 (5) (a) (see People v Quinones, 280 AD2d at 560).
The defendant's conviction of reckless endangerment in the second degree (see PenalLaw § 120.20), however, must be vacated. That count of the indictment had beendismissed prior to trial and was mistakenly submitted to the jury (see People v Long, 56 AD3d 685[2008]; People v Flores, 43 AD3d955, 955 [2007]; People v Romero, 309 AD2d 953, 954 [2003]; People vHarris, 229 AD2d 595, 595 [1996]). Mastro, J.P., Dickerson, Chambers and Roman, JJ.,concur.