PEOPLE v. DAVIS

Defendant's motion to dismiss the indictment on the ground that he was deprived of his right to testify before the Grand Jury was properly denied. The record establishes that the People provided defendant with several opportunities to testify but that his failure to testify resulted from his abusive conduct toward, and failure to cooperate with, each of the two successive attorneys that were assigned to him at the Grand Jury stage (see, People v. Smith, 283 A.D.2d 208, 726 N.Y.S.2d 12, lv denied 96 N.Y.2d 907).

Defendant's motion to suppress physical evidence and the statement he made at the precinct was properly denied. There is no basis upon which to disturb the court's credibility determinations, which are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761). There was a definite and pronounced break of 40 minutes between the statements at the scene which ultimately were suppressed and the statements at the precinct (see, People v. Chapple, 38 N.Y.2d 112). There is no evidence of continuing interrogation during the 40-minute break.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.