People v Cuoco

People v Cuoco 2010 NY Slip Op 00303 [69 AD3d 468] January 14, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent,
v
John Cuoco, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Alexis Agathocleous of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October 11, 2007, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

Defendant argues that the court should have granted his motion to dismiss the indictment, made on the ground that an offensive remark made by a grand juror at the close of defendant's grand jury testimony incurably tainted the proceeding. However, by pleading guilty, defendant forfeited that claim (see People v Hansen, 95 NY2d 227 [2000]). As in Hansen, "[d]efendant in essence seeks a review of the fact-finding process engaged in by the grand jurors" (id. at 232). The prosecutor instructed the grand juror in question not to vote and directed the other grand jurors to disregard the remark. Under these circumstances, defendant's claim does not implicate the integrity of the grand jury proceedings (see CPL 210.35 [5]; People v Darby, 75 NY2d 449, 455 [1990]). Concur—Andrias, J.P., McGuire, Moskowitz, Freedman and RomÁn, JJ.