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People v. Russ

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 15, 2002
292 A.D.2d 862 (N.Y. App. Div. 2002)

Opinion

386

March 15, 2002.

Appeal from a judgment of Ontario County Court (Harvey, J.), entered February 21, 2001, convicting defendant after a jury trial of, inter alia, robbery in the first degree (two counts).

Zimmerman Tyo, Shortsville (John E. Tyo of counsel), for defendant-appellant.

Bryon K. Russ, defendant-appellant pro se.

R. Michael Tantillo, District Attorney, Canandaigua, for plaintiff-respondent.

PRESENT: GREEN, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.


MEMORANDUM AND ORDER

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

Memorandum:

County Court properly denied defendant's suppression motion. The police officers lawfully stopped the minivan driven by defendant based upon a reasonable suspicion of criminal activity ( see, People v. Vitiello, 285 A.D.2d 480; People v. Soler, 268 A.D.2d 376, lv denied 95 N.Y.2d 804). Further, because the officers were investigating a shooting, they were entitled to frisk defendant for their personal safety ( see, People v. Hightower, 261 A.D.2d 871, lv denied 93 N.Y.2d 971). The alleged failure of defense counsel to effectuate defendant's desire to testify before the Grand Jury, standing alone, does not constitute ineffective assistance of counsel ( see, People v. Wiggins, 89 N.Y.2d 872, 873; People v. Conyers, 285 A.D.2d 825, 826). Contrary to defendant's contention, the court had the authority to reinstate the indictment upon reargument without the necessity of a new Grand Jury presentation ( see, People v. Rosa, 265 A.D.2d 167, lv denied 94 N.Y.2d 884; People v. Lynch, 162 A.D.2d 134, lv denied 76 N.Y.2d 941). Contrary to the further contention of defendant in his pro se supplemental brief, the alleged denial of his right to a timely preliminary hearing does not warrant dismissal of the indictment or a new trial ( see, People v. Bensching, 117 A.D.2d 971, 972, lv denied 67 N.Y.2d 939). Finally, defendant waived his present challenge to the sufficiency of the indictment by failing to raise it in his pretrial motion ( see, People v. Pitkin, 267 A.D.2d 1021, 1022, lv denied 95 N.Y.2d 802).


Summaries of

People v. Russ

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 15, 2002
292 A.D.2d 862 (N.Y. App. Div. 2002)
Case details for

People v. Russ

Case Details

Full title:PEOPLE OF THE STATE OF NEW YORK, Plaintiff-respondent, v. BRYON K. RUSS…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 15, 2002

Citations

292 A.D.2d 862 (N.Y. App. Div. 2002)
739 N.Y.S.2d 512

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