New York Supreme and/or Appellate Courts Appellate Division, First Department
January 24, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v McCoy
Decided on January 24, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Micki A. Scherer, J. at dismissal motion; Edward J. McLaughlin, J. at jury trial and sentencing), rendered November 5, 2008, convicting defendant of attempted assault in the first degree (two counts), burglary in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent felony offender, to an aggregate term of 16 years to life, unanimously affirmed.
The court properly denied defendant's motion to dismiss the indictment, made on the ground that the prosecutor's questioning of defendant before the grand jury was allegedly improper. The cross-examination at issue was generally appropriate and responsive to defendant's testimony (see People v Karp, 76 NY2d 1006, 1008 , revg on dissenting op of Sullivan, J., 158 AD2d 378, 385-390 ). In any event, any defects fell far short of impairing the integrity of the proceeding and creating a risk of prejudice (see People v Huston, 88 NY2d 400, 410 ; People v Darby, 75 NY2d 449, 455 ).
Defendant did not preserve his claim that the People improperly re-presented the attempted assault charges to a second grand jury without court authorization (see People v Julius, 300 AD2d 167, 168 , lv denied 99 NY2d 655 ). We have considered and rejected defendant's arguments for exempting his claim from the requirement of preservation, including his claim that an unauthorized re-presentation is a mode-of-proceedings error. This type of error is not jurisdictional (People v Batista, 299 AD2d 270 , lv denied 99 NY2d 626 ), and defects in grand jury procedure generally require preservation (see People v Brown, 81 NY2d 798 ). We see no reason to create an exception here, and we decline to review this unpreserved claim in the interest of justice. In any event, although the People should have obtained the court's permission to resubmit the charges (see People v Credle, 17 NY3d 556 ), the reasons for the withdrawal were "legitimate . . . and the underlying circumstances did not provide a clear indication that the first grand jury's decisional authority was being subverted" (id. at 562 [citation omitted]).
Since defendant's request for a jury charge on the lesser included offense of attempted third-degree assault was made on a different ground from the ground he raises on appeal, he did not preserve his present claim (see e.g. People v Liner, 262 AD2d 250 , lv denied 93 NY2d 1021 ), and we decline to review it in the interest of justice. As an alternative holding, we find that there was no reasonable view of the evidence that defendant attempted to commit a third-degree assault but not a first-degree assault.
The court properly exercised its discretion in adjudicating defendant a persistent felony offender. The persistent felony offender statute (Penal Law § 70.10) is constitutional (People v Quinones, 12 NY3d 116 ).
We have considered and rejected defendant's pro se claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 24, 2012
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