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

1376
KA 10-01963
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RALIK BAILEY, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered July 29, 2010. The judgment convicted defendant, upon a
nonjury verdict, of assault in the second degree (two counts).

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

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of two counts of assault in the second degree (Penal Law
§ 120.05 [3]), defendant contends that he was deprived of his right to
testify before the grand jury (see CPL 190.50). We reject that
contention. Approximately three months after defendant was involved
in an altercation with correction officers at Attica Correctional
Facility and before any criminal charges were filed against him,
defendant was visited at another correctional facility by a police
investigator who attempted to interview him about the altercation at
Attica. Defendant told the investigator, “I have nothing to say at
this time. Also at this time I request an attorney and to be present
at any criminal proceedings or hearings if any take place.” An
indictment was later filed against defendant, charging him with
various crimes arising from the incident at Attica, including the two
counts of felony assault of which he was later convicted. It is
undisputed that defendant was not advised of the grand jury
presentation and thus did not testify before the grand jury.

     CPL 190.50 (5) (a) provides a defendant with the right to testify
before the grand jury “if, prior to the filing of any indictment . . .
in the matter, he serves upon the district attorney of the county a
written notice making such request. . . .” “In order to preserve his
or her statutory pretrial rights, including the right to testify
before the [g]rand [j]ury, a defendant must assert them ‘at the time
and in the manner that the Legislature prescribes’ ” (People v Green,
                                 -2-                          1376
                                                         KA 10-01963

187 AD2d 528, lv denied 81 NY2d 840, quoting People v Lawrence, 64
NY2d 200, 207). The requirements of CPL 190.50 are to be “strictly
enforced” (People v Madsen, 254 AD2d 152, 153, lv denied 92 NY2d 1035;
see People v Yon, 300 AD2d 1127, lv denied 99 NY2d 621). Here, we
conclude that defendant’s statement to the police investigator was not
sufficient to invoke his right to testify before the grand jury under
CPL 190.50. The statement was not in writing, it was not served upon
the District Attorney, and defendant merely asserted that he wished to
be present at any proceedings but did not expressly request to testify
before the grand jury. In addition, because defendant was not
arraigned “in a local criminal court upon a currently undisposed of
felony complaint” (CPL 190.50 [5] [a]), the People had no obligation
to inform defendant of the grand jury presentation (see People v
Mathis, 278 AD2d 803, lv denied 96 NY2d 785).

     We also reject defendant’s contention that the verdict is against
the weight of the evidence based on inconsistencies in the testimony
of the various correction officers who testified against him at trial.
Viewing the evidence in light of the elements of the crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), and affording
appropriate deference to the court’s credibility determinations (see
People v Hill, 74 AD3d 1782, lv denied 15 NY3d 805), we conclude that
those inconsistencies are not so substantial as to render the verdict
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). Finally, although the appeal by defendant from the
judgment convicting him of the predicate conviction upon which his
adjudication as a second felony offender is based remains pending, we
nevertheless reject his contention that the court could not use that
conviction as the basis for that adjudication. In the event that the
judgment is reversed on appeal, defendant may then move to set aside
his sentence herein pursuant to CPL 440.20 (see People v Main, 213
AD2d 981, lv denied 85 NY2d 976).




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
