Opinion
541 KA 19-00703
06-17-2021
The PEOPLE of the State of New York, Respondent, v. John CROSBY, Defendant-Appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Oneida County Court, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon a jury verdict of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05 [7] ), defendant contends, inter alia, that County Court erred in denying his pro se motion to dismiss the indictment on the ground that he was not afforded an opportunity to testify before the grand jury pursuant to CPL 190.50 (5) (a). The People argue that defendant waived that contention by failing to make a timely motion for dismissal on that ground ( see CPL 190.50 [5] [c] ; People v. Hibbard , 27 A.D.3d 1196, 1196, 810 N.Y.S.2d 770 [4th Dept. 2006], lv denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284 [2006] ). The court, however, did not state on the record its reasons for denying defendant's motion to dismiss the indictment, and we cannot say whether it denied the motion on the basis of timeliness ( see generally People v. Concepcion , 17 N.Y.3d 192, 198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ; People v. LaFontaine , 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998], rearg denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999] ). We therefore hold the case, reserve decision, and remit the matter to County Court to state for the record its reasons for denying defendant's motion.