PEOPLE v. NEELY

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

PEOPLE of the State of New York, Respondent, v. Timothy NEELY, Appellant.

Decided: March 13, 1998

Before DENMAN, P.J., and HAYES, BALIO, BOEHM and FALLON, JJ. Edward J. Nowak by Stephen Bird, Rochester, for Appellant. Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

 Defendant appeals from a judgment convicting him after a nonjury trial of escape in the second degree.   Defendant based his trial motions for dismissal on a ground different from those raised on appeal.   Thus, defendant failed to preserve for our review his present contentions that his conduct did not constitute an escape and that he lacked the requisite mens rea (see, CPL 470.05[2];  People v. Santos, 86 N.Y.2d 869, 870, 635 N.Y.S.2d 168, 658 N.E.2d 1041).   We nevertheless exercise our power to review the contention that defendant's conduct did not constitute an escape as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

 Although the term “escape” is not defined in the Penal Law, it should be given its common meaning (see, People ex rel. Powell v. Warden of Kings County Hosp., 73 A.D.2d 654, 655, 422 N.Y.S.2d 726), which is “ ‘to get away (as by flight or conscious effort):  break away, get free or get clear (the prisoner escaped from prison)’ ” (People v. Hutchinson, 56 N.Y.2d 868, 870, 453 N.Y.S.2d 394, 438 N.E.2d 1109, quoting Webster's Third New International Dictionary, at 774).   Defendant fled from the courtroom after sentencing in an attempt to escape.   His attempt was unsuccessful, however;  he was apprehended on the same floor of the courthouse by court officers.   Thus, defendant's conviction of escape in the second degree is not supported by legally sufficient evidence but the evidence is sufficient to support a conviction for attempted escape.   We modify the judgment, therefore, by reducing the conviction of escape in the second degree to the lesser offense of attempted escape in the second degree and by vacating the sentence imposed thereon, and we remit the matter to Monroe County Court for sentencing on that conviction (see, CPL 470.20[4] ).

 We reject the contention that defendant was denied the opportunity to appear before the Grand Jury (see, CPL 190.50[5][a] ).   The prosecutor notified defendant and the Public Defender's Office on the afternoon of defendant's arraignment in local criminal court that the matter would be presented to the Grand Jury the following day.   Defendant could have filed a written request to appear before the Grand Jury at any time prior to the filing of the indictment (see, CPL 190.50[5][a];  People v. Evans, 79 N.Y.2d 407, 412, 583 N.Y.S.2d 358, 592 N.E.2d 1362), which occurred three days after the arraignment.   In the absence of a written request by defendant to appear, the People did not deprive him of a reasonable opportunity to testify before the Grand Jury.

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed and matter remitted to Monroe County Court for sentencing.

MEMORANDUM: