Opinion
November 22, 1993
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the order is reversed, on the law, the motion is denied, and the indictment is reinstated.
The Supreme Court erred in granting the defendant's motion based on an alleged interference with her right to testify before the Grand Jury. CPL 190.50 (5) (c) provides that a motion to dismiss an indictment because a defendant has not been allowed to testify before the Grand Jury must be made not more than five days after the defendant is arraigned on the indictment. The issue is waived if the defendant fails to timely move. In this case, it is undisputed that the defendant filed her motion six days after her arraignment on the indictment. Therefore, the defendant waived any claim arising under CPL 190.50 (see, People v Webb, 195 A.D.2d 614).
In any event, we find that the conduct of the Assistant District Attorney in question did not violate the defendant's right to testify before the Grand Jury and does not mandate dismissal of the indictment (see, People v Loizides, 125 Misc.2d 537).
We also find the People's notice of appeal to have been timely filed (see, People v Herrara, 171 A.D.2d 85; People v Stager, 124 A.D.2d 982). Thompson, J.P., Balletta, Miller and Joy, JJ., concur.