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

1000
KA 12-00229
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID F. MCNAMARA, DEFENDANT-RESPONDENT.


JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR APPELLANT.

DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Cayuga County Court (Mark H.
Fandrich, A.J.), entered November 21, 2011. The order granted the
motion of defendant to dismiss the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion is denied, the indictment
is reinstated and the matter is remitted to Cayuga County Court for
further proceedings on the indictment.

     Memorandum: On this appeal by the People from an order granting
defendant’s motion to dismiss the indictment, we reject at the outset
their contention that County Court lacked authority to grant
defendant’s motion because the court granted the motion upon a ground
that was not timely asserted. According to the People, the only
timely asserted ground for dismissal was that the People failed to
inform defense counsel of charges other than the initial drug charges
against defendant, but the court granted the motion on a different
ground, i.e., that defendant’s notice of appearance served as his
request to testify before the grand jury with respect to the
subsequent homicide charges against defendant and he was denied the
right to testify. We note, however, that defendant’s motion
referenced the notice of appearance as the document that reserved
defendant’s right to testify before the grand jury, and in their
opposing affidavit the People in fact addressed the ground on which
the motion was granted, i.e., they contended that the notice of
appearance was solely in connection with the initial drug charges and
did not serve as defendant’s request to testify regarding the homicide
charges. Thus, it cannot be said that the court deprived the People
of “the opportunity to address any alleged defects prior to dismissal
of [the] indictment” (People v Santmyer, 255 AD2d 871, 872, lv denied
93 NY2d 902; see CPL 210.45 [2], [6]).

     Nevertheless, we agree with the People on the merits that
                                 -2-                         1000
                                                        KA 12-00229

defendant was not denied his statutory right to testify before the
grand jury and thus that the court erred in granting his motion to
dismiss the indictment on that ground (see generally CPL 190.50 [5]
[a]; People v Smith, 18 AD3d 888, lv denied 5 NY3d 794). Defendant
was not subject to an undisposed felony complaint in a local criminal
court, and thus the District Attorney was not required to provide
defendant with notice that the matter was going to be presented to a
grand jury and to “accord the defendant a reasonable time to exercise
his right to appear as witness therein” (CPL 190.50 [5] [a]; see
People v Woodard, 197 AD2d 905; People v Simmons, 178 AD2d 972, 972,
lv denied 79 NY2d 1007). Furthermore, defendant’s notice of
appearance applied only to the “then-entirely-separate [drug charges]”
and not to the subsequent homicide charges at issue, and the People
therefore were not obligated to consider the notification, which
included the request to testify, as pertaining to the subsequent
homicide charges (People v Steed, 253 AD2d 714, 715, lv denied 92 NY2d
1054). Thus, the notice of appearance did not trigger defendant’s
right to notification of the presentment of the homicide case.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
