THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RICHARD WASHINGTON III DEFENDANT APPELLANT (2011)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RICHARD J. WASHINGTON, III, DEFENDANT–APPELLANT.

KA 09–00403

Decided: December 23, 2011

PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ROBERT R. REITTINGER OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: We previously held this case, reserved decision, and remitted the matter to County Court “to conduct a hearing on defendant's motion” to dismiss the indictment on the ground that the integrity of the grand jury proceedings was impaired pursuant to CPL 210.20(1)(c) because a specified grand juror was incapable of performing his duties based on bias or prejudice (People v. Washington, 82 AD3d 1675, 1677; see CPL 190.20[2][b] ). Upon remittal, the court conducted the hearing on defendant's motion. Defendant concedes that the court has now complied with CPL 210.45 in connection with his motion, and we conclude from the hearing transcript that defendant failed to prove “by a preponderance of the evidence every fact essential to support the motion” (CPL 210.45[7] ). Thus, we affirm the judgment.

Frances E. Cafarell

Clerk of the Court

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