PEOPLE v. DiFONDI

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Peter DiFONDI, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HAYES, HURLBUTT and KEHOE, JJ. Joseph L. Arbour, Tonawanda, for Defendant-Appellant. Thomas H. Brandt, Lockport, for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25[2] ).   By failing to move to dismiss the indictment within five days of his arraignment, defendant has waived his contention that he was denied his right to testify before the Grand Jury in a timely manner and thus that the indictment should be dismissed (see, CPL 190.50[5][c];  People v. Webb, 236 A.D.2d 872, 873, 653 N.Y.S.2d 999, lv. denied 90 N.Y.2d 865, 661 N.Y.S.2d 192, 683 N.E.2d 1066).   Although we agree with defendant that it was improper for the prosecutor to compel him to wear his jail clothing when testifying before the Grand Jury, we conclude that the curative instructions given by the prosecutor dispelled any prejudice (see, People v. Walker, 259 A.D.2d 1026, 1027, 688 N.Y.S.2d 326, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949;  People v. Longdue, 168 A.D.2d 948, 566 N.Y.S.2d 562, lv. denied 77 N.Y.2d 879, 568 N.Y.S.2d 922, 571 N.E.2d 92).   Contrary to defendant's contention, the prosecutor's actions did not cumulatively impair the integrity of the Grand Jury proceedings to such a degree that defendant was prejudiced thereby (cf., People v. Tomaino, 248 A.D.2d 944, 946-947, 670 N.Y.S.2d 950).

 We further conclude that County Court did not abuse its discretion in denying defendant's request for an adjournment to subpoena a witness to testify at the Huntley hearing.   The record establishes that defendant failed to act diligently in identifying and locating that particular witness (see, People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003;  People v. Savareese, 258 A.D.2d 484, 485, 685 N.Y.S.2d 449, lv. denied 93 N.Y.2d 974, 695 N.Y.S.2d 60, 716 N.E.2d 1105;  93 N.Y.2d 978, 695 N.Y.S.2d 65, 716 N.E.2d 1110;  People v. Blasini, 253 A.D.2d 886, 887, 678 N.Y.S.2d 515, lv. denied 92 N.Y.2d 1028, 684 N.Y.S.2d 493, 707 N.E.2d 448).   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: