Opinion
2001-11005
Argued December 16, 2002.
January 13, 2003.
Appeal by the People from an order of the Supreme Court, Kings County (Lewis, J.), entered December 18, 2001, as amended by order of the same court, dated January 4, 2002, which granted the defendant's motion to dismiss the indictment on the ground that he was denied an opportunity to testify before the Grand Jury pursuant to CPL 190.50.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for appellant.
Michael A. Drobenare, Brooklyn, N.Y., for respondent.
Before: ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order, as amended, is reversed, on the law and the facts, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.
In a hearing on a motion to dismiss an indictment, the defendant has the burden of proving, by a preponderance of the evidence, every fact essential to support the motion (see CPL 210.45; People v. Anderson, 66 N.Y.2d 529, 541). Although "`factual findings by a hearing court are not to be lightly disregarded, plainly unjustified or clearly erroneous findings are not to be accepted'" by an appellate court (People v. Infante, 245 A.D.2d 303, quoting People v. Tempton, 192 A.D.2d 369, 370; People v. Garafolo, 44 A.D.2d 86, 88).
The credible testimony at the hearing overwhelmingly established that the defendant, in fact, waived his right to testify before the Grand Jury (see generally People v. Corley, 67 N.Y.2d 105, 110). Accordingly, the Supreme Court erred in granting the defendant's motion to dismiss the indictment.
FLORIO, J.P., O'BRIEN, ADAMS and CRANE, JJ., concur.