PEOPLE v. PRESSLEY

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

The PEOPLE of the State of New York, Respondent, v. Terry PRESSLEY, Defendant-Appellant.

Decided: March 25, 1999

ELLERIN, P.J., SULLIVAN, LERNER and RUBIN, JJ. Ilisa T. Fleischer, for Respondent. Herald Price Fahringer, for Defendant-Appellant.

Judgment, Supreme Court, New York County (James Yates, J.), rendered August 15, 1997, convicting defendant, after a jury trial, of rape in the first degree, sexual abuse in the first degree and sodomy in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7 to 14 years and 2 1/212 to 5 years, consecutive to a determinate term of 12 years, and order, same court and Justice, entered February 9, 1998, which denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed.

 We find no basis to disturb the factual determination of the court that defendant was informed of the additional charge being considered by the Grand Jury on February 16, 1996, well before his Grand Jury testimony of February 20, 1996.   In any event, the prosecutor was under no duty to advise defendant of these charges as “[t]he Grand Jury notice provisions of CPL 190.50(5) do not impose upon the prosecution an obligation to provide notice of separate charges presented to a Grand Jury which are not included in a pending felony complaint” (People v. Clark, 240 A.D.2d 325, 660 N.Y.S.2d 114, lv. denied 91 N.Y.2d 890, 669 N.Y.S.2d 4, 691 N.E.2d 1030).   We similarly agree with the court that defendant received meaningful representation at the Grand Jury stage of the proceedings (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

 We perceive no abuse of sentencing discretion and find no merit to defendant's various constitutional and statutory challenges to his sentencing as a second violent felony offender.

Defendant's remaining claims are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

MEMORANDUM DECISION.