PEOPLE v. RUSS (2002)

 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, 727 N.Y.S.2d 890;  People v. Soler, 268 A.D.2d 376, 702 N.Y.S.2d 251, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 173, 733 N.E.2d 245).   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, 699 N.Y.S.2d 847, lv. denied 93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102).   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, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Conyers, 285 A.D.2d 825, 826, 727 N.Y.S.2d 545).   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, 696 N.Y.S.2d 138, lv. denied 94 N.Y.2d 884, 705 N.Y.S.2d 16, 726 N.E.2d 493;  People v. Lynch, 162 A.D.2d 134, 556 N.Y.S.2d 80, lv. denied 76 N.Y.2d 941, 563 N.Y.S.2d 71, 564 N.E.2d 681).   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, 499 N.Y.S.2d 522, lv. denied 67 N.Y.2d 939, 502 N.Y.S.2d 1031, 494 N.E.2d 116).   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, 701 N.Y.S.2d 198, lv. denied 95 N.Y.2d 802, 711 N.Y.S.2d 170, 733 N.E.2d 242).

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

MEMORANDUM: