| People v Bailey |
| 2011 NY Slip Op 09728 [90 AD3d 1664] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RalikBailey, Appellant. |
—[*1] Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered July29, 2010. The judgment convicted defendant, upon a nonjury verdict, of assault in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of twocounts of assault in the second degree (Penal Law § 120.05 [3]), defendant contends thathe was deprived of his right to testify before the grand jury (see CPL 190.50). We rejectthat contention. Approximately three months after defendant was involved in an altercation withcorrection officers at Attica Correctional Facility and before any criminal charges were filedagainst him, defendant was visited at another correctional facility by a police investigator whoattempted to interview him about the altercation at Attica. Defendant told the investigator, "Ihave nothing to say at this time. Also at this time I request an attorney and to be present at anycriminal proceedings or hearings if any take place." An indictment was later filed againstdefendant, charging him with various crimes arising from the incident at Attica, including thetwo counts of felony assault of which he was later convicted. It is undisputed that defendant wasnot advised of the grand jury presentation and thus did not testify before the grand jury.
CPL 190.50 (5) (a) provides a defendant with the right to testify before the grand jury "if,prior to the filing of any indictment . . . in the matter, he serves upon the districtattorney of the county a written notice making such request." "In order to preserve his or herstatutory pretrial rights, including the right to testify before the [g]rand [j]ury, a defendant mustassert them 'at the time and in the manner that the Legislature prescribes' " (People vGreen, 187 AD2d 528 [1992], lv denied 81 NY2d 840 [1993], quoting People vLawrence, 64 NY2d 200, 207 [1984]). The requirements of CPL 190.50 are to be "strictlyenforced" (People v Madsen, 254 AD2d 152, 153 [1998], lv denied 92 NY2d1035 [1998]; see People v Yon, 300 AD2d 1127 [2002], lv denied 99 NY2d 621[2003]). Here, we conclude that defendant's statement to the police investigator was notsufficient to invoke his right to testify before the grand jury under CPL 190.50. The statementwas not in writing, it was not served upon the District Attorney, and defendant merely assertedthat he wished to be present at any proceedings but did not expressly request to testify before thegrand jury. In addition, [*2]because defendant was not arraigned"in a local criminal court upon a currently undisposed of felony complaint" (CPL 190.50 [5] [a]),the People had no obligation to inform defendant of the grand jury presentation (see People vMathis, 278 AD2d 803 [2000], lv denied 96 NY2d 785 [2001]).
We also reject defendant's contention that the verdict is against the weight of the evidencebased on inconsistencies in the testimony of the various correction officers who testified againsthim at trial. Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), and affording appropriate deference to the court's credibilitydeterminations (see People v Hill,74 AD3d 1782 [2010], lv denied 15 NY3d 805 [2010]), we conclude that thoseinconsistencies are not so substantial as to render the verdict against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, although the appealby defendant from the judgment convicting him of the predicate conviction upon which hisadjudication as a second felony offender is based remains pending, we nevertheless reject hiscontention that the court could not use that conviction as the basis for that adjudication. In theevent that the judgment is reversed on appeal, defendant may then move to set aside his sentenceherein pursuant to CPL 440.20 (see People v Main, 213 AD2d 981 [1995], lvdenied 85 NY2d 976 [1995]). Present—Scudder, P.J., Centra, Carni, Lindley andMartoche, JJ.