Opinion
December 22, 1986
Appeal from the Supreme Court, Kings County (Fuchs, J.).
Ordered that the judgment is affirmed.
On this appeal, the defendant raises a variety of grounds in support of his argument for reversal of the judgment of conviction. Only a few of his claims merit discussion.
The defendant's argument that the indictment should be dismissed because of the People's delay in presenting the case to the Grand Jury is without merit. The Grand Jury voted to indict the defendant less than four months after he allegedly shot the complainant. The delay in presentment was caused by the seriousness of the complainant's injuries and was not prejudicial to the defendant. Under these circumstances, the preindictment delay does not warrant dismissal (see, People v. Bonsauger, 91 A.D.2d 1001). Nor was the defendant unduly prejudiced by the fact that the complainant's testimony was presented to the Grand Jury in the form of a videotape, apparently with the consent of defense counsel. The Legislature's subsequent enactment of CPL 190.32, which provides that the People may move ex parte for an order permitting the use in Grand Jury proceedings of videotaped testimony of an incapacitated witness, lends support to a finding that under certain circumstances, evidence in that form may be appropriate.
Also without merit is the defendant's claim that the trial court committed reversible error when it directed him to answer the prosecutor's questions. A defendant who voluntarily takes the stand in his own behalf "waives his 5th Amendment privilege and cannot refuse to answer questions regarding any matters relevant to the case" (People v. Bagby, 65 N.Y.2d 410, 414).
Similarly, the defendant's contention that the court improperly restricted the testimony of the defense witnesses is untenable. In order for evidence of prior violent acts of the victim to be admissible in support of a justification defense, the defendant must have been aware of the acts before he committed the crime (see, e.g., People v. Goetz, 68 N.Y.2d 96; People v. Sellers, 113 A.D.2d 850). That is not the situation in this case.
Finally, the defendant's adjudication as a second violent felony offender was proper (see, Penal Law § 70.04; People v Morse, 62 N.Y.2d 205, appeal dismissed sub nom. Vega v. New York, 469 U.S. 1186; People v. Towns, 109 A.D.2d 764). Mangano, J.P., Bracken, Niehoff and Spatt, JJ., concur.