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

The PEOPLE of the State of New York, Respondent, v. Raymond DAVIS, Defendant-Appellant.

Decided: October 23, 2001

NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN and LERNER, JJ. Madeleine Guilmain, for Respondent. Walter Evans, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Herbert Adlerberg, J. on dismissal motion;  Ira Beal, J. at hearing;  Michael Sonberg, J. at jury trial and sentence), rendered October 20, 1999, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

 Defendant's motion to dismiss the indictment on the ground that he was deprived of his right to testify before the Grand Jury was properly denied.   The record establishes that the People provided defendant with several opportunities to testify but that his failure to testify resulted from his abusive conduct toward, and failure to cooperate with, each of the two successive attorneys that were assigned to him at the Grand Jury stage (see, People v. Smith, 283 A.D.2d 208, 726 N.Y.S.2d 12, lv. denied 96 N.Y.2d 907, 730 N.Y.S.2d 806, 756 N.E.2d 94 [2001], 2001 N.Y. LEXIS 2952).

 Defendant's motion to suppress physical evidence and the statement he made at the precinct was properly denied.   There is no basis upon which to disturb the court's credibility determinations, which are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   There was a definite and pronounced break of 40 minutes between the statements at the scene which ultimately were suppressed and the statements at the precinct (see, People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243).   There is no evidence of continuing interrogation during the 40-minute break.

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