| People v Frierson |
| 2016 NY Slip Op 01552 |
| Decided on March 3, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 3, 2016
Tom, J.P., Saxe, Richter, Kapnick, JJ.
377 4485/12 2027/12 376
v
Jamie Frierson, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Judgments, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppression hearing; Charles H. Solomon, J. at dismissal motion and suppression ruling; Ruth Pickholz, J. at jury trial and sentencing), rendered March 7, 2013, as amended June 10, 2013, convicting defendant of criminal possession of a forged instrument in the first degree (four counts) and petit larceny, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, unanimously affirmed.
The court properly denied defendant's motion to dismiss the indictment, made on the ground that he was deprived of his right to testify before the grand jury when, against defendant's wishes, his counsel withdrew defendant's notice of intent to testify. We decline to revisit our prior holdings (see People v Brown, 116 AD3d 568 [1st Dept 2014], lv denied 24 NY3d 1001 [2014]; People v Santiago, 72 AD3d 492 [1st Dept 2010], lv denied 15 NY2d 757 [2010]) that the right to testify before the grand jury is not among the rights reserved to a defendant personally, but is among the rights of a defendant whose exercise is a strategic decision requiring "the expert judgment of counsel" (People v Colville, 20 NY3d 20, 32 [2012]).
Defendant's argument that the warrantless searches of his backpack and wallet were not justified by exigent circumstances is unpreserved, and we decline to review it in the interest of justice. While defendant's cross-examination may have touched on this subject, he limited his suppression argument to the distinct issue of probable cause to arrest, and the court did not "expressly decide[ ]" the issue "in response to a protest by a party" (CPL 470.05[2]; see People v [Emilio] Jimenez, 109 AD3d 764 [1st Dept 2013]). As an alternative holding, we find that although the hearing evidence did not demonstrate exigent circumstances (see People v [Josefina] Jimenez, 22 NY3d 717 [2014]), any error in receiving the evidence at issue was
harmless because the remaining evidence of defendant's guilt was overwhelming (see People v Crimmins, 36 NY2d 230 [1975]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2016
CLERK