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

261
KA 11-01661
PRESENT: SMITH, J.P., FAHEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DALE R. RIGBY, DEFENDANT-APPELLANT.


TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Cayuga County Court (Patricia D.
Marks, J.), rendered April 6, 2010. The judgment convicted defendant,
upon his plea of guilty, of reckless endangerment in the first degree
(two counts).

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

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of two counts of reckless endangerment in the first degree
(Penal Law § 120.25), defendant contends that the indictment must be
dismissed because the prosecutor failed to inform the grand jury of
defendant’s request to call a witness to the incident giving rise to
the charges. We note at the outset that defendant’s contention
concerns the integrity of the grand jury proceeding (see generally
People v Hill, 5 NY3d 772, 773), and it therefore survives defendant’s
guilty plea (see People v Gilmore, 12 AD3d 1155, 1155-1156).
Nevertheless, we conclude that the prosecutor properly informed the
grand jury of defendant’s request to call a witness (see CPL
190.50 [6]; cf. Hill, 5 NY3d at 773; People v Calkins, 85 AD3d 1676,
1677). The record establishes that defendant requested in writing
that the grand jury cause a certain person to be called as a witness,
and the prosecutor read defendant’s request verbatim to the grand jury
and afforded the grand jury the opportunity to determine whether it
wanted to hear testimony from that person. By pleading guilty,
defendant forfeited his further contention that the indictment should
be dismissed because the prosecutor failed to introduce exculpatory
evidence before the grand jury (see People v Crumpler, 70 AD3d 1396,
1397, lv denied 14 NY3d 839). Finally, the sentence is not unduly
harsh or severe.

Entered:    April 26, 2013                         Frances E. Cafarell
                                                   Clerk of the Court
