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

1305
KA 09-00403
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RICHARD J. WASHINGTON, III, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ROBERT R. REITTINGER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered December 13, 2006. The appeal was held by this
Court by order entered March 25, 2011, decision was reserved and the
matter was remitted to Oneida County Court for further proceedings (82
AD3d 1675). 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 conduct a hearing on
defendant’s motion” to dismiss the indictment on the ground that the
integrity of the grand jury proceedings was impaired pursuant to CPL
210.20 (1) (c) because a specified grand juror was incapable of
performing his duties based on bias or prejudice (People v Washington,
82 AD3d 1675, 1677; see CPL 190.20 [2] [b]). Upon remittal, the court
conducted the hearing on defendant’s motion. Defendant concedes that
the court has now complied with CPL 210.45 in connection with his
motion, and we conclude from the hearing transcript that defendant
failed to prove “by a preponderance of the evidence every fact
essential to support the motion” (CPL 210.45 [7]). Thus, we affirm
the judgment.




Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
