PEOPLE v. WALKER (2005)

 Defendant appeals from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25 [1] ), attempted aggravated sexual abuse in the first degree (§§ 110.00, 130.70 [1] [a] ), and hindering prosecution in the first degree (§ 205.65).   Contrary to the contention of defendant, he was not deprived of his right to testify before the grand jury.   The felony complaint charging defendant with offenses that were the subject of the grand jury proceeding had been disposed of by a preliminary hearing pursuant to CPL 180.70(1), and thus the People had no obligation to inform defendant of the grand jury proceeding (see 190.50 [5] [a];  People ex rel. McCoy v. Filion, 295 A.D.2d 956, 957, 744 N.Y.S.2d 604, lv. denied 98 N.Y.2d 612, 749 N.Y.S.2d 3, 778 N.E.2d 554;  People v. Green, 110 A.D.2d 1035, 1036, 489 N.Y.S.2d 129).   Nonetheless, the People notified defendant of the presentment approximately 15 days before it occurred, and gave defendant approximately 8 days' advance notice of the time and location where he could testify before the grand jury.   Thus, defendant was afforded a “reasonable time to exercise his right to appear as a witness therein” (190.50[5][a];  see People v. Sawyer, 274 A.D.2d 603, 605, 711 N.Y.S.2d 45, affd. 96 N.Y.2d 815, 727 N.Y.S.2d 381, 751 N.E.2d 460, rearg. denied 96 N.Y.2d 928, 733 N.Y.S.2d 363, 759 N.E.2d 361;  see also People v. Moore, 249 A.D.2d 575, 670 N.Y.S.2d 623, lv. denied 92 N.Y.2d 857, 677 N.Y.S.2d 87, 699 N.E.2d 447).   In addition, defendant had no right to discovery prior to indictment (see generally Matter of Brown v. Appelman, 241 A.D.2d 279, 284-285, 672 N.Y.S.2d 373).

 Contrary to the further contention of defendant, County Court properly denied his motion to suppress his statements to the police after conducting a Huntley hearing (see generally People v. Brunson, 226 A.D.2d 1093, 1093-1094, 641 N.Y.S.2d 935, lv. dismissed 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613), and the court properly refused to conduct a Dunaway hearing.   Defendant's omnibus motion papers contain only conclusory allegations and defendant did not request a Dunaway hearing therein.   Moreover, the post-Huntley hearing brief in which defendant requests a Dunaway hearing does not contain the sworn allegations of fact required for a motion to suppress evidence pursuant to CPL 710.60(1) (see People v. Mendoza, 82 N.Y.2d 415, 426-429, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  People v. Huntley, 259 A.D.2d 843, 844-845, 687 N.Y.S.2d 747, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103;  see also Brunson, 226 A.D.2d at 1093-1094, 641 N.Y.S.2d 935;  see generally People v. Toxey, 220 A.D.2d 204, 631 N.Y.S.2d 846, lv. denied 88 N.Y.2d 855, 644 N.Y.S.2d 701, 667 N.E.2d 351).   Finally, defendant's contentions concerning the legal sufficiency of the evidence have not been preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and in any event are without merit.

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

MEMORANDUM: