People v. Flowers

283 A.D.2d 362, 728 N.Y.S.2d 131, 2001 N.Y. App. Div. LEXIS 6592

Opinion

—Judgment, Supreme Court, New York County (Brenda Soloff, J., on CPL 190.50 [5] [c] motion; Antonio Brandveen, J., at jury trial and sentence), rendered December 8, 1998, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 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 without a hearing. The record is clear that while defendant initially submitted a timely written request to testify, such notice was withdrawn, through counsel, prior to the People’s presentation of the case to the Grand Jury. Defendant’s moving papers were insufficient to raise a factual dispute warranting a hearing. Defendant’s remaining contentions concerning his right to testify before the Grand Jury are unpreserved.and we decline to review them in the interest of justice. Were we to review these claims, we would find that there was no unequivocal and effective renewal of defendant’s request to testify (see, People v Clay, 248 AD2d 180, lv denied 92 NY2d 849), and no other basis for reversal (see, People v Wiggins, 89 NY2d 872; People v Dickens, 259 AD2d 450, lv denied 93 NY2d 1002).

The court’s Sandoval ruling with respect to defendant’s prior record of seven convictions was properly balanced. It only permitted inquiry into whether defendant had two 1988 felony convictions for bribe receiving and robbery and a 1998 misdemeanor conviction, while precluding inquiry into the underlying facts of the robbery and misdemeanor convictions. Although the felony convictions occurred 10 years prior to trial, given their particular nature, we do not find them to be excessively remote to defendant’s credibility (see, People v Walker, 83 NY2d 455, 458-459). Concur — Tom, J. P., Ellerin, Wallach, Rubin and Buckley, JJ.