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

97
KA 13-01880
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHAROD P. WHITE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered September 4, 2013. The judgment convicted
defendant, upon a nonjury verdict, of robbery in the first degree and
robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted, and the
indictment against defendant is dismissed without prejudice to the
People to re-present any appropriate charges to another grand jury.

     Memorandum: Defendant appeals from a judgment convicting him,
following a bench trial, of robbery in the first degree (Penal Law
§ 160.15 [3]) and robbery in the second degree (§ 160.10 [1]).
Defendant contends that he was deprived of his right to testify before
the grand jury and that County Court thus erred in denying his motion
to dismiss the indictment pursuant to CPL 190.50 (5) (c) and CPL
210.35 (4) (see CPL 210.20 [1] [c]). We agree. CPL 190.50 (5) (a)
provides that a defendant’s request to testify is timely as long as it
is made prior to the filing of the indictment (see People v Evans, 79
NY2d 407, 412; People v Moss, 143 AD3d 1269, 1270). Here, defendant’s
January 15, 2013 letter, which “satisfied the statutory requirements
for notifying the People of a request to appear before the grand jury”
(Moss, 143 AD3d at 1270), was received by the District Attorney on
January 17, 2013, prior to the filing of the indictment on January 25,
2013. Contrary to the contention of the People and the rationale of
the court, it is of no moment under the statute that defendant’s
request to testify was not received until the day after the grand jury
had voted to issue an indictment and several days after the deadlines
set forth in the two grand jury notices given by the People to
defendant. As the Court of Appeals has noted, a defendant has a right
“under CPL 190.50 (5) (a) to provide notice and, therefore, the
concomitant right to give testimony even perhaps after an indictment
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                                                         KA 13-01880

has been voted but before it is filed” (Evans, 79 NY2d at 414).
Where, as here, defendant’s request to testify is received after the
grand jury has voted, but before the filing of the indictment,
defendant is entitled to a reopening of the proceeding to enable the
grand jury to hear defendant’s testimony and to revote the case, if
the grand jury be so advised (see People v Dillard, 160 AD2d 472, 473,
lv denied 76 NY2d 847; People v Young, 138 AD2d 764, 765, lv denied 72
NY2d 868; see generally Evans, 79 NY2d at 414-415; People v Cade, 74
NY2d 410, 415, 417).

     We reject defendant’s contention that the evidence is legally
insufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). In addition, viewing the evidence in
light of the elements of the crimes in this bench trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s further contention
that the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
