People v. Jackson

Judgment, Supreme Court, New York County (Micki Scherer, J., on dismissal motion; Joan Sudolnik, J., at jury trial and sentence), rendered October 10, 1997, convicting defendant of burglary in the second degree and criminal possession of a controlled substance in the seventh degree, and sentencing her, as a second felony offender, to an aggregate term of eight years, unanimously affirmed.

The court properly denied defendant’s motion to dismiss the indictment since she was afforded a reasonable opportunity to testify before the grand jury. The record establishes that defendant’s failure to testify resulted from defense counsel’s miscommunications with the prosecution concerning the scheduling of defendant’s grand jury appearance and a failure to communicate with a clerk from her own office (see People v Jones, 288 AD2d 107, lv denied 97 NY2d 706; People v Edwards, 283 AD2d 219, lv denied 96 NY2d 918).

Evidence concerning an uncalled eyewitness’s description of defendant was properly admitted, not for its truth, but as background information to explain the police actions leading to *145defendant’s arrest and to prevent speculation by the jury (see People v Tosca, 98 NY2d 660; People v Casanova, 160 AD2d 394, lv denied 76 NY2d 786; see also Tennessee v Street, 471 US 409). Moreover, any possible prejudice arising from the testimony was averted by the court’s extensive limiting instructions. Concur — Nardelli, J.P., Saxe, Rosenberger, Friedman and Marlow, JJ.