People v. Green
| Decision Date | 09 November 1992 |
| Citation | 187 A.D.2d 528,589 N.Y.S.2d 916 |
| Parties | The PEOPLE, etc., Respondent, v. Gary GREEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Steven Berko and Edward Klein, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Leonard Joblove, and Hilda
Mortensen-Hoyt, of counsel), for respondent.
Before MANGANO, P.J., and SULLIVAN, BALLETTA and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered December 12, 1990, convicting him of attempted murder in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the indictment was obtained in violation of his right to testify before the Grand Jury. However, since he failed to comply with the written notice requirements of CPL 190.50(5)(a), his right to testify never accrued (see, People v. Harris, 150 A.D.2d 723, 541 N.Y.S.2d 593; People v. MacCall, 122 A.D.2d 79, 504 N.Y.S.2d 227; People v. Reynolds, 35 A.D.2d 529, 313 N.Y.S.2d 223). Defense counsel's oral notice that the defendant "may wish to testify" was insufficient (see, People v. Harris, supra; People v. Taylor, 165 A.D.2d 800, 564 N.Y.S.2d 60) and, contrary to the defendant's further contention, the prosecutor's response that the People would contact defense counsel did not relieve the defendant from his statutory obligation. In order to preserve his or her statutory pretrial rights, including the right to testify before the Grand Jury, a defendant must assert them "at the time and in the manner that the Legislature prescribes" (People v. Lawrence, 64 N.Y.2d 200, 207, 485 N.Y.S.2d 233, 474 N.E.2d 593; People v. Saldana, 161 A.D.2d 441, 556 N.Y.S.2d 534; see also, People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079). Accordingly, the Supreme Court properly denied the defendant's motion to dismiss the indictment.
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