        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

885
KA 11-02471
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NORMAN KOONCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered October 31, 2011. The appeal was held by
this Court by order entered November 8, 2013, decision was reserved
and the matter was remitted to Erie County Court for further
proceedings (111 AD3d 1277). The proceedings were held and completed.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: We previously held this case, reserved decision and
remitted the matter to County Court to rule on defendant’s renewed
motion to “ ‘rule on whether the jurors who voted this indictment were
present for all the testimony presented on this case’ ” (People v
Koonce, 111 AD3d 1277, 1279). We determined in our prior decision
that defendant’s remaining contentions on the appeal from the judgment
of conviction after a jury trial lacked merit (id. at 1278-1279).
Upon remittal, the court denied the renewed motion, and we now affirm.

     Defendant contends that the grand jury proceeding was not
properly conducted in accordance with CPL 190.25 (1) inasmuch as the
summary sheet from the proceeding shows that 20 votes were cast to
indict him, while the attendance sheet lists only 19 grand jurors
present. We reject that contention. The attendance sheet shows, in
fact, that there were 21 grand jurors present on the day that
defendant was indicted. We therefore conclude from the two sheets
that one grand juror simply did not vote. Thus, contrary to
defendant’s contention, the record establishes that “at least 12
[grand] jurors who . . . heard all of the ‘essential and critical
evidence’ vote[d] to indict” (People v Perry, 199 AD2d 889, 891, lv
                                 -2-                           885
                                                         KA 11-02471

denied 83 NY2d 856; see People v Collier, 72 NY2d 298, 301-302).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
