People v. Sumpter

• Decision Date: 26 December 1991
• Citation: 579 N.Y.S.2d 770,178 A.D.2d 973
• Parties: PEOPLE of the State of New York, Respondent, v. Raymond SUMPTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 770

579 N.Y.S.2d 770

178 A.D.2d 973

PEOPLE of the State of New York, Respondent, v. Raymond SUMPTER, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 26, 1991.

Edward J. Nowak by Louis Pilato, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Before CALLAHAN, J.P., and BOOMER, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

Defendant waived his contention that the indictment against him should have been dismissed because he was denied a reasonable opportunity to testify before and to present evidence to the Grand Jury. An indictment is subject to dismissal on that ground only if a proper motion is made within five days of defendant's arraignment on the indictment (see, CPL 190.50[5][c]. Here, defendant was arraigned on the indictment on July 28, 1986, but his motion to dismiss was not made until October 7, 1986, more than two months later. Accordingly, defendant waived any challenge to the indictment on this ground (see, CPL 190.50[5][c]; People v. Gilbert, 143 A.D.2d 529, 533 N.Y.S.2d 30, lv. denied 73 N.Y.2d 786, 536 N.Y.S.2d 746, 533 N.E.2d 676; People v. LaBounty, 127 A.D.2d 989, 512 N.Y.S.2d 950, lv. denied69 N.Y.2d 1005, 517 N.Y.S.2d 1039, 511 N.E.2d 98). Moreover, the record establishes that defendant was given a reasonable opportunity to appear before the Grand Jury but declined to take advantage of it.

We have examined defendant's remaining contentions and find them to be without merit.

Judgment unanimously affirmed.