People v Rigby

2013 NY Slip Op 02890 [105 AD3d 1383]

April 26, 2013

Appellate Division, Fourth Department

As corrected through Wednesday, May 29, 2013

The People of the State of New York, Respondent, v DaleR. Rigby, Appellant.

—[*1]Timothy J. Brennan, Auburn, for defendant-appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.

Appeal from a judgment of the Cayuga County Court (Patricia D. Marks, J.),rendered April 6, 2010. The judgment convicted defendant, upon his plea of guilty, ofreckless endangerment in the first degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty oftwo counts of reckless endangerment in the first degree (Penal Law § 120.25),defendant contends that the indictment must be dismissed because the prosecutor failedto inform the grand jury of defendant's request to call a witness to the incident giving riseto the charges. We note at the outset that defendant's contention concerns the integrity ofthe grand jury proceeding (seegenerally People v Hill, 5 NY3d 772, 773 [2005]), and it therefore survivesdefendant's guilty plea (seePeople v Gilmore, 12 AD3d 1155, 1155-1156 [2004]). Nevertheless, weconclude that the prosecutor properly informed the grand jury of defendant's request tocall a witness (see CPL 190.50 [6]; cf. Hill, 5 NY3d at 773; People v Calkins, 85 AD3d1676, 1677 [2011]). The record establishes that defendant requested in writing thatthe grand jury cause a certain person to be called as a witness, and the prosecutor readdefendant's request verbatim to the grand jury and afforded the grand jury theopportunity to determine whether it wanted to hear testimony from that person. Bypleading guilty, defendant forfeited his further contention that the indictment should bedismissed because the prosecutor failed to introduce exculpatory evidence before thegrand jury (see People vCrumpler, 70 AD3d 1396, 1397 [2010], lv denied 14 NY3d 839[2010]). Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Fahey, Sconiers and Whalen, JJ.