PEOPLE v. SMITH

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

The PEOPLE, etc., respondent, v. Wayne SMITH, appellant.

Decided: May 31, 2005

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, FRED T. SANTUCCI, and ROBERT A. SPOLZINO, JJ. Lynn W.L. Fahey, New York, N.Y., and Chadbourne & Parke, LLP, New York, N.Y. (Thomas E. Butler and Jennifer L. Frattini of counsel), for appellant (one brief filed). Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Huanyoung Gao of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered April 28, 2003, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 We disagree with the defendant's contention that he was deprived of his right to testify before the grand jury.  CPL 190.50(5)(a) provides a defendant with the right to testify before the Grand Jury “if, prior to the filing of any indictment ․ in the matter, he serves upon the district attorney of the county a written notice making such request.”   Although the defendant claims that he told his attorney of his desire to testify before the grand jury, we find no support in the record that either he or his attorney ever gave the required written notice to the District Attorney.   Consequently, his motion to dismiss the indictment pursuant to CPL 190.50 was properly denied (see People v. Rogers, 228 A.D.2d 623, 645 N.Y.S.2d 497).

 The defendant's claim of error concerning the jury charge on recent and exclusive possession is not preserved for appellate review (see CPL 470.05 [2];  People v. Fernandez, 286 A.D.2d 444, 730 N.Y.S.2d 234, lv. denied 4 N.Y.3d 830, 796 N.Y.S.2d 585, 829 N.E.2d 678 [Mar. 31, 2005];  People v. Vasquez, 11 A.D.3d 643, 782 N.Y.S.2d 679).   In any event, any error was harmless in light of the overwhelming proof of the defendant's guilt (see People v. Hutton, 220 A.D.2d 687, 688, 633 N.Y.S.2d 60, affd. 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879;  People v. Luperena, 159 A.D.2d 727, 553 N.Y.S.2d 208).

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