People v. Davis

287 A.D.2d 376, 732 N.Y.S.2d 1, 2001 N.Y. App. Div. LEXIS 9909

Opinion

—Judgment, Supreme Court, New York County (Herbert Adlerberg, J., on dismissal motion; Ira Beal, J., at hearing; Michael Sonberg, J., at jury trial and sentence), rendered October 20, 1999, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Defendant’s motion to dismiss the indictment on the ground that he was deprived of his right to testify before the Grand Jury was properly denied. The record establishes that the People provided defendant with several opportunities to testify but that his failure to testify resulted from his abusive conduct toward, and failure to cooperate with, each of the two successive attorneys that were assigned to him at the Grand Jury stage (see, People v Smith, 283 AD2d 208, lv denied 96 NY2d 907).

Defendant’s motion to suppress physical evidence and the statement he made at the precinct was properly denied. There is no basis upon which to disturb the court’s credibility determinations, which are supported by the record (see, People v Prochilo, 41 NY2d 759, 761). There was a definite and pronounced break of 40 minutes between the statements at the scene which ultimately were suppressed and the statements at the precinct (see, People v Chapple, 38 NY2d 112). There is no evidence of continuing interrogation during the 40-minute break. Concur — Nardelli, J. P., Tom, Mazzarelli, Ellerin and Lerner, JJ.