The motion court properly denied Simmons's CPL 190.50 (5) (c) motion to dismiss the indictment. Initially it must be noted that Simmons failed to provide a written request to testify before the grand jury ( see People v Washington, 284 AD2d 220, lv denied 96 NY2d 925). In addition, the notice provided Simmons by the prosecutor set forth its intention to present the matter to the grand jury and provided specifics regarding the date, time and place of the presentation satisfying in all respects their obligation under the Criminal Procedure Law.
Following a jury trial, he was convicted as charged and now appeals. Although defendant contends that County Court should have dismissed the indictment because the People never responded to his request to testify before the grand jury ( see CPL 190.50 [a]), he failed to meet his burden to prove actual receipt by the District Attorney of his written request to testify ( see People v. Brown, 300 AD2d 918, 919, lv denied 100 NY2d 536). Defendant alleged that he had mailed such a request, but there is no evidence in the record that it was ever received by the District Attorney ( see id.; People v. Washington, 284 AD2d 220, lv denied 96 NY2d 925). Defendant's ineffective assistance of counsel claim is also unavailing.
We reject that contention. While incarcerated, on January 2, 2001 defendant received a letter from the District Attorney dated December 20, 2000, notifying defendant of the grand jury proceedings on January 9, 2001 and of his right to testify before the grand jury pursuant to CPL 190.50. Defendant's written request to testify, dated January 4, 2001 and placed by a correction officer in intercounty mail, was not received by the District Attorney until January 10, 2001, one day after the indictment was filed. Defendant's request to testify before the grand jury therefore was untimely pursuant to CPL 190.50(5)(a) because it was not served prior to the filing of the indictment, "a requirement that is strictly enforced" ( People v. Madsen, 254 A.D.2d 152, 153, lv denied 92 N.Y.2d 1035; see People v. Clay, 248 A.D.2d 180, lv denied 92 N.Y.2d 849, 852; People v. Crisp, 246 A.D.2d 84, 86, lv dismissed 93 N.Y.2d 898; see also People v. Washington, 284 A.D.2d 220, lv denied 96 N.Y.2d 925). Defendant further contends that County Court erred in failing to charge the jury with respect to the agency defense for the first drug transaction on October 20, 2000. Defense counsel specifically stated that he did not want an agency charge for that transaction, and thus defendant has waived that contention ( see generally People v. Matta, 286 A.D.2d 944, 945, lv denied 97 N.Y.2d 731).
rmation in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent" (CPL 190.50 [a]). Defendant maintains that he sent a letter to the District Attorney on February 4, 2001 advising of his desire to testify before the grand jury, but was never advised of when the presentment would be made. The District Attorney, however, claims that the letter was never received. The record discloses that the letter was addressed to Janet De Carlo, the Deputy Chief Clerk of the Supreme and County Courts. According to the affirmation submitted by Assistant District Attorney Alexander McDonald, no evidence of the letter was found in the records of the District Attorney's office. It has been held that actual receipt by the District Attorney, not mailing, is necessary to trigger the obligation to provide a criminal defendant the opportunity to testify before a grand jury pursuant to CPL 190.50(5)(a) (see People v. Washington, 284 A.D.2d 220, lv denied 96 N.Y.2d 925; People v. Crisp, 246 A.D.2d 84, 86, lv dismissed 93 N.Y.2d 898). Since the letter was incorrectly addressed and defendant offered no proof that the District Attorney, in fact, received his February 4, 2001 letter, there was no statutory violation. In addition, defendant contends that his first attorney's representation was ineffective because he ignored defendant's request to seek dismissal of the indictment based upon the District Attorney's failure to allow him to testify before the grand jury.
Any failure of the defendant to appear before the grand jury, under the above circumstances, cannot be blamed on the People. Defendant was accorded more than a reasonable opportunity to testify, and the prosecution did not act precipitously in presenting the case to the grand jury (see People v Washington, 284 AD2d 220 [2001], lv denied 96 NY2d 925 [2001]; People v Clark, 267 AD2d 4 [1999], lv denied 94 NY2d 946 [2000]; People v Savareese, 258 AD2d 484 [1999], lv denied 93 NY2d 978 [1999]). The motion to dismiss the indictment is, therefore, denied.
Defendant was accorded more than a reasonable opportunity to testify, and the prosecution did not act precipitously in presenting the case to the grand jury. (see People v. Washington, 284 A.D.2d 220, lv denied 96 N.Y.2d 925;People v. Clark, 267 A.D.2d 4, lv denied 94 N.Y.2d 946; People v. Savareese, 258 A.D.2d 484, lv denied 93 N.Y.2d 978). The motion to dismiss the indictment is, therefore, denied.