Opinion
408 KA 17–00956
03-23-2018
The PEOPLE of the State of New York, Respondent, v. James DAVIS, Defendant–Appellant.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (AMANDA L. CASSELMAN OF COUNSEL), FOR RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (AMANDA L. CASSELMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him upon his plea of guilty of attempted menacing a police officer or peace officer ( Penal Law §§ 110.00, 120.18 ), defendant contends that the indictment must be dismissed because the prosecutor failed to inform the grand jury of defendant's request pursuant to CPL 190.50(6) to call witnesses to the incident giving rise to the charges in the indictment. Contrary to the People's assertion, we conclude that defendant's contention "concerns the integrity of the grand jury proceeding ..., and it therefore survives defendant's guilty plea" ( People v. Rigby, 105 A.D.3d 1383, 1383, 963 N.Y.S.2d 492 [4th Dept. 2013], lv denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013] ; cf. People v. McCommons, 119 A.D.3d 1085, 1085 n., 988 N.Y.S.2d 903 [3d Dept. 2014] ; see generally People v. Hill, 5 N.Y.3d 772, 773, 801 N.Y.S.2d 794, 835 N.E.2d 654 [2005], affg 8 A.D.3d 1076, 778 N.Y.S.2d 653 [4th Dept. 2004] ). Nevertheless, defendant's contention is without merit inasmuch as the prosecutor properly informed the grand jury of his request to call the witnesses (see CPL 190.50[6] ; Rigby, 105 A.D.3d at 1383–1384, 963 N.Y.S.2d 492 ). The record establishes that defendant requested in writing that the grand jury cause certain persons to be called as witnesses, and that the prosecutor read defendant's request to the grand jury and afforded the grand jury the opportunity to determine whether it wanted to hear testimony from those persons. "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" ( Rigby, 105 A.D.3d at 1384, 963 N.Y.S.2d 492 ).
Finally, we reject defendant's challenge to the legality and the severity of the sentence. County Court imposed the legal minimum sentence for a class E felony committed by a second felony offender (see Penal Law §§ 70.06[3] [e] ; [4][b]; 110.05[6]; 120.18) and, therefore, there is no basis for the exercise of our authority to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ; People v. Barber, 106 A.D.3d 1533, 1533–1534, 964 N.Y.S.2d 450 [4th Dept. 2013] ; People v. Furman, 294 A.D.2d 848, 849, 741 N.Y.S.2d 761 [4th Dept. 2002], lv denied 98 N.Y.2d 696, 747 N.Y.S.2d 415, 776 N.E.2d 4 [2002] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.