Opinion
March 10, 1989
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Callahan, J.P., Boomer, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On this consolidated appeal from a judgment of conviction for second degree burglary and related crimes and from an order denying his motion to vacate the judgment, defendant's principal claim is that the indictment must be dismissed because his waiver of immunity was ineffective (see, People v. Higley, 70 N.Y.2d 624). Defendant, however, has not preserved this claim for review because he failed to move to dismiss the indictment before trial or before sentencing (see, People v. Sapp, 142 A.D.2d 971, lv denied 72 N.Y.2d 961). Since the defect in the Grand Jury proceeding was not jurisdictional (see, CPL 440.10 [a]; People v. Iannone, 45 N.Y.2d 589, 600), the court was not required to grant defendant's motion to vacate the judgment. If a claim of statutory immunity can be waived by a plea of guilty (see, People v. Flihan, 73 N.Y.2d 729, 731), then it can also be waived by failing to assert it in a timely manner.
The court properly permitted the People leave to serve a late CPL 710.30 notice regarding identification testimony because the prosecutor established good cause and notified the defendant as soon as she learned of the proposed witness (see, People v Whitaker, 106 A.D.2d 594). The identification testimony was properly received because the photo array was not impermissibly suggestive (see, People v. Reid, 137 A.D.2d 844, lv denied 71 N.Y.2d 901) and, in any event, the witness had an independent basis for her in-court identification (see, Manson v. Brathwaite, 432 U.S. 98, 116). The circumstantial evidence, when viewed in the light most favorable to the People (see, People v. Kennedy, 47 N.Y.2d 196, 203), was sufficient to sustain the convictions. Although the prosecutor in summation improperly referred to an alleged statement of the defendant not in evidence, the court properly instructed the jury to disregard the remark and correctly charged the jury on the People's burden of proof (see, People v. Galloway, 54 N.Y.2d 396, 399; People v. Moore, 114 A.D.2d 595, 596).