People v. Washington

Order unanimously reversed on the law and indictment reinstated. Memorandum: The District Attorney appeals from an order of County Court which severed and dismissed as to respondent an indictment charging respondent and his brother jointly with violations of subdivision 3 of sections 120.05 and 205.30 of the Penal Law on July 2,1971. The charges arose out of an altercation with police officers. The respondent was originally charged with these two felonies in informations filed in the Utica City Court. After a preliminary hearing on July 15, 1971, City Court dismissed the charges against respondent. The District Attorney then submitted the case to the Grand Jury which returned this indictment against respondent on October 13,1971. Various pretrial motions and discussions followed and on November 6, 1972 respondent moved for the first time to dismiss the indictment because the District Attorney had not afforded him an opportunity to testify before the Grand Jury. County Court granted the motion. The District Attorney had no obligation to notify respondent of the pending or prospective Grand Jury proceedings involving him because at the time of the Grand Jury proceeding there remained no currently undisposed of felony complaint pending against respondent in a local criminal court which was the subject of the Grand Jury investigation. (CPL 190.50 subd. 5, par. [a]), Furthermore, any right respondent had to dismissal of this indict*678ment on the ground that his right to testify was violated was waived by his failure to move against this indictment within five days after his arraignment on the charges (CPL 190.50 subd. 5, par. [e]). (Appeal from order of Oneida County Court, dismissing indictment.) Present — Marsh, J. P., Witmer, Cardamone, Simons and Henry, JJ.