Opinion
2011-12-30
The PEOPLE of the State of New York, Respondent, v. Ralik BAILEY, Defendant–Appellant.
Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a nonjury trial of two counts of assault in the second degree (Penal Law § 120.05[3] ), defendant contends that he was deprived of his right to testify before the grand jury ( see CPL 190.50). We reject that contention. Approximately three months after defendant was involved in an altercation with correction officers at Attica Correctional Facility and before any criminal charges were filed against him, defendant was visited at another correctional facility by a police investigator who attempted to interview him about the altercation at Attica. Defendant told the investigator, “I have nothing to say at this time. Also at this time I request an attorney and to be present at any criminal proceedings or hearings if any take place.” An indictment was later filed against defendant, charging him with various crimes arising from the incident at Attica, including the two counts of felony assault of which he was later convicted. It is undisputed that defendant was not advised of the grand jury presentation and thus did not testify before the grand jury.
CPL 190.50(5)(a) provides a defendant with the right to testify before the grand jury “if, prior to the filing of any indictment ... in the matter, he serves upon the district attorney of the county a written notice making such request....” “In order to preserve his or her statutory pretrial rights, including the right to testify before the [g]rand [j]ury, a defendant must assert them ‘at the time and in the manner that the Legislature prescribes' ” ( People v. Green, 187 A.D.2d 528, 589 N.Y.S.2d 916, lv. denied 81 N.Y.2d 840, 595 N.Y.S.2d 739, 611 N.E.2d 778, quoting People v. Lawrence, 64 N.Y.2d 200, 207, 485 N.Y.S.2d 233, 474 N.E.2d 593). The requirements of CPL 190.50 are to be “strictly enforced” ( People v. Madsen, 254 A.D.2d 152, 153, 681 N.Y.S.2d 6, lv. denied 92 N.Y.2d 1035, 684 N.Y.S.2d 500, 707 N.E.2d 455; see People v. Yon, 300 A.D.2d 1127, 754 N.Y.S.2d 128, lv. denied 99 N.Y.2d 621, 757 N.Y.S.2d 833, 787 N.E.2d 1179). Here, we conclude that defendant's statement to the police investigator was not sufficient to invoke his right to testify before the grand jury under CPL 190.50. The statement was not in writing, it was not served upon the District Attorney, and defendant merely asserted that he wished to be present at any proceedings but did not expressly request to testify before the grand jury. In addition, because defendant was not arraigned “in a local criminal court upon a currently undisposed of felony complaint” (CPL 190.50[5][a] ), the People had no obligation to inform defendant of the grand jury presentation ( see People v. Mathis, 278 A.D.2d 803, 719 N.Y.S.2d 419, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 650, 749 N.E.2d 219).
We also reject defendant's contention that the verdict is against the weight of the evidence based on inconsistencies in the testimony of the various correction officers who testified against him at trial. Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and affording appropriate deference to the court's credibility determinations ( see People v. Hill, 74 A.D.3d 1782, 902 N.Y.S.2d 755, lv. denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899), we conclude that those inconsistencies are not so substantial as to render the verdict against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Finally, although the appeal by defendant from the judgment convicting him of the predicate conviction upon which his adjudication as a second felony offender is based remains pending, we nevertheless reject his contention that the court could not use that conviction as the basis for that adjudication. In the event that the judgment is reversed on appeal, defendant may then move to set aside his sentence herein pursuant to CPL 440.20 ( see People v. Main, 213 A.D.2d 981, 625 N.Y.S.2d 970, lv. denied 85 N.Y.2d 976, 629 N.Y.S.2d 736, 653 N.E.2d 632).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.