Opinion
January 22, 1991
Appeal from the Supreme Court, Bronx County, Bonnie Wittner, J.
Although defendant expressed a desire to testify before the Grand Jury, he never submitted a written request as required by CPL 190.50 (5) (a); his oral notice to the People and the Supreme Court was insufficient (People v Harris, 150 A.D.2d 723, 724), although in appropriate circumstances that requirement may be waived (see, People v Gini, 72 A.D.2d 752). On this record, we cannot determine whether there was a waiver or whether defendant, through counsel, in off-the-record comments, indicated a reluctance to testify before the Grand Jury. Significantly, no complaint was made at defendant's subsequent arraignment that he was denied the opportunity so to testify. Thus, it may well be that defendant was attempting to manipulate the system.
In any event, defendant's pro se motion to dismiss the indictment for failure to honor his request to appear before the Grand Jury was properly rejected as untimely (CPL 190.50 [c]) and improper, as defendant was represented by competent assigned counsel. No conflict between defendant and assigned counsel is apparent on this record to warrant a different conclusion (compare, People v Renaud, 145 A.D.2d 367, appeal dismissed 74 N.Y.2d 734). Nor would counsel's failure to secure defendant's right to testify before the Grand Jury, without more, demonstrate ineffective assistance of counsel. (People v Hamlin, 153 A.D.2d 644. ) Our disposition on this point, however, is without prejudice to any postjudgment motion defendant may wish to avail himself of concerning the entire question of his request to testify before the Grand Jury.
The motion to suppress the prerecorded "buy" money was properly denied. The People demonstrated probable cause to arrest defendant based on the transmission of an accurate and undisputed description of him by the undercover officer to the arresting officer, who testified at the hearing. The testimony of the undercover officer was not required at the hearing since probable cause was established by the arresting officer and no substantial issue as to the validity of the arrest was raised warranting the production of the undercover officer. (See, People v Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852; People v Mingo, 121 A.D.2d 307. )
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Kupferman, J.P., Sullivan, Ross, Ellerin and Rubin, JJ.