People v. Nix

265 A.D.2d 891, 696 N.Y.S.2d 326, 1999 N.Y. App. Div. LEXIS 10006

Opinion

—Order unanimously reversed on the law, motion denied, indictment No. 4201 reinstated and matter remitted to Wyoming County Court for further proceedings on the indictment. Memorandum: County Court erred in granting defendant’s motion to dismiss indictment No. 4201 on the ground that the People failed to honor a request by defendant to testify before the Grand Jury (see, CPL 190.50 [5] [c]). Indictment No. 4201 superseded indictment No. 4180 and was returned by the same Grand Jury without additional proof. Although defendant submitted a timely written request to testify before the first presentment, he notified the prosecutor at that presentment that he did not want to testify. In the absence of an effective request to testify, the People were entitled to resubmit the charges without notice to defendant (see, CPL 190.50 [5] [a]; see also, People v Franco, 86 NY2d 493, 499-500; cf., People v Greco, 230 AD2d 23, lv denied 90 NY2d 858, 940). (Appeal from Order of Wyoming County Court, Griffith, J. — Dismiss Indictment.) Present — Green, J. P., Pine, Wisner, Callahan and Balio, JJ.