PEOPLE v. CLARK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Donald CLARK, Defendant-Appellant.

Decided: February 07, 2001

PRESENT:  GREEN, J.P., PINE, HAYES, WISNER and SCUDDER, JJ. Mary Good, Buffalo, for defendant-appellant. Paul J. Williams, III, Orchard Park, for plaintiff-respondent.

 County Court properly denied the pro se motion of defendant to dismiss the indictment based on the People's failure to notify him of his right to testify in a prospective Grand Jury proceeding (see, CPL 190.50[5][a] ).   The motion was made more than five days after defendant's arraignment and was therefore untimely (see, CPL 190.50[5][c] ).   Further, although defendant was not entitled to the statutory notice because he was not subject to an “undisposed of felony complaint” in a local criminal court (CPL 190.50[5][a];  see, People v. Akel, 267 A.D.2d 1070, 701 N.Y.S.2d 579, lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618), the District Attorney nevertheless provided defendant with the statutory notice by mailing it to defendant's attorney and to defendant at both his last address and at the Erie County Holding Center (see, People v. Bourdon, 255 A.D.2d 619, 620, 681 N.Y.S.2d 615, lv. denied 92 N.Y.2d 1028, 684 N.Y.S.2d 493, 707 N.E.2d 448).   The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The court properly denied defendant's motion to suppress the showup identification.   Defendant was apprehended a short distance from the crime scene, and the showup was conducted at the crime scene less than 30 minutes after the burglary.  “The circumstances that defendant was handcuffed behind his back and in the presence of police officers, and that the complainant was told that he would be viewing a suspect, did not render the procedure unduly suggestive” (People v. Edwards, 259 A.D.2d 343, 344, 687 N.Y.S.2d 317, lv. denied 93 N.Y.2d 969, 695 N.Y.S.2d 55, 716 N.E.2d 1100).   The sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: