PEOPLE v. SHELTRAY (1997)

 Defendant was convicted after a jury trial of the forcible rape, sodomy and sexual abuse of a 29-year-old mentally disabled woman.   He contends that the Grand Jury proceedings were defective because the prosecutor administered the oath to the victim in violation of CPL § 190.25(2) and because of other nonjurisdictional errors occurring during the presentment (see, CPL § 210.35[5] ).  By failing to submit a written motion to dismiss on those grounds within 45 days after arraignment, defendant waived his right to a determination of those issues and failed to preserve them for our review (see, People v. De Pillo, 168 A.D.2d 899, 565 N.Y.S.2d 650, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 944, 580 N.E.2d 416).   Defendant raised those issues for the first time in a posttrial motion to set aside the verdict (see, CPL § 330.30[1] ), and County Court did not err in denying that motion.  “A trial court's authority to set aside a verdict under CPL § 330.30(1) is limited to grounds which, if raised on appeal, would require reversal as a matter of law [citation omitted].   Accordingly, only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict” (People v. Josey, 204 A.D.2d 571, 612 N.Y.S.2d 170).   In any event, “dismissal of an indictment under CPL 210.35(5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the Grand Jury. The [alleged errors] here [are] not of such magnitude” (People v. Carey, 241 A.D.2d 748, 751, 660 N.Y.S.2d 886;  cf., People v. Rivers, 145 A.D.2d 319, 534 N.Y.S.2d 986, lv. denied 73 N.Y.2d 981, 540 N.Y.S.2d 1015, 538 N.E.2d 367).   We have examined defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: