Opinion
1751
October 3, 2002.
Judgment, Supreme Court, New York County (Micki Scherer, J. on dismissal motion; Joan Sudolnik, J. at jury trial and sentence), rendered October 10, 1997, convicting defendant of burglary in the second degree and criminal possession of a controlled substance in the seventh degree, and sentencing her, as a second felony offender, to an aggregate term of 8 years, unanimously affirmed.
HOPE KORENSTEIN, for respondent.
JAN HOTH-UZZO, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Rosenberger, Friedman, Marlow, JJ.
The court properly denied defendant's motion to dismiss the indictment since she was afforded a reasonable opportunity to testify before the grand jury. The record establishes that defendant's failure to testify resulted from defense counsel's miscommunications with the prosecution concerning the scheduling of defendant's grand jury appearance and a failure to communicate with a clerk from her own office (see People v. Jones, 288 A.D.2d 107, lv denied 97 N.Y.2d 706; People v. Edwards, 283 A.D.2d 219, lv denied 96 N.Y.2d 918).
Evidence concerning an uncalled eyewitness's description of defendant was properly admitted, not for its truth, but as background information to explain the police actions leading to defendant's arrest and to prevent speculation by the jury (see People v. Tosca, 98 N.Y.2d 660; People v. Casanova, 160 A.D.2d 394, lv denied 76 N.Y.2d 786; see also Tennessee v. Street, 471 U.S. 409). Moreover, any possible prejudice arising from the testimony was averted by the court's extensive limiting instructions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.