Opinion
February 21, 1986
Appeal from the Cattaraugus County Court, Crowley, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Pine, JJ.
Judgment unanimously affirmed. Memorandum: On defendant's prior appeal from convictions of multiple sex offenses, we reserved decision and remitted for a hearing to explore the assignment of counsel issue and to determine under what circumstances the defendant "waived" a preliminary hearing (see, People v Bensching, 105 A.D.2d 1054). At the hearing, it was to be determined whether defendant's waiver of a preliminary hearing was "`an intentional relinquishment or abandonment of a known right or privilege'" (supra, p 1055).
The record of the hearing on remittitur reveals that when placed under arrest, defendant indicated that he wanted an attorney and instructed his wife, in the presence of the arresting officers, to get him an attorney. Thereafter, the police "scrupulously honored" that request and did not question defendant further (see, People v. Cunningham, 49 N.Y.2d 203; People v. Grant, 45 N.Y.2d 366, 376). It appears that upon his arraignment in the local Town Court, defendant was advised of his right to counsel and his right to a preliminary hearing. It is apparent that counsel was not assigned to represent him at that time because of defendant's representations that his wife would be obtaining counsel from Buffalo. Thus, neither the police nor the court denied or abridged defendant's right to counsel.
Defendant's claim that he is entitled to a new trial because he was denied the right to a preliminary hearing is without merit. There is no constitutional or statutory right to a preliminary hearing (see, People ex rel. Hirschberg v. Close, 1 N.Y.2d 258; People v. Aaron, 55 A.D.2d 653, 654; People v. Abbatiello, 30 A.D.2d 11, 12), nor is it a jurisdictional predicate to indictment (see, People v. Hodge, 53 N.Y.2d 313, 319-320; People ex rel. Hirschberg v. Close, supra; see also, Matter of Molea v. Marasco, 64 N.Y.2d 718, 722 [Simons, J., dissenting]). Here, the Judge who arraigned defendant in the local criminal court fully advised defendant of his right to a prompt hearing to determine whether there was sufficient evidence to hold him for the Grand Jury (see, CPL 180.10). While failure to afford a timely preliminary hearing would entitle defendant, upon application, to be released on his own recognizance (see, CPL 180.80), it does not require that the indictment be dismissed or a new trial be held (see, People v. Phillips, 88 A.D.2d 672; People v. Aaron, supra).