66 A.D.3d 1386
N.Y. App. Div.
2009

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v TERRY L. BEAN, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

885 N.Y.S.2d 804

Present—Smith, J.P., Centra, Fahey, Carni and Pine, JJ.

Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered December 10, 2007. The judgment convicted defendant, upon a jury verdict, of attempted rape in the first degree (two counts), endangering the welfare of a child (two counts), and unlawfully dealing with a child in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [2], [4]) and endangering the welfare of a child (§ 260.10 [1]), and one count of unlawfully dealing with a child in the first degree (§ 260.20 [2]). Contrary to the contention of defendant, County Court properly denied his motion, upon renewal, seeking to dismiss the indictment on the ground that the grand jury proceeding was defective. Defendant sought dismissal based on alleged prosecutorial misconduct, contending that “the integrity [of the grand jury proceeding was] impaired” and that he was thereby prejudiced (CPL 210.35 [5]). Dismissal of the indictment on that ground is an “exceptional remedy” that is not warranted in this case (People v Darby, 75 NY2d 449, 455 [1990]). Upon our review of the grand jury proceeding, we conclude that “[t]here is no indication that the People knowingly or deliberately presented false testimony before the [g]rand [j]ury, and thus there is no basis for finding that the integrity of the [g]rand [j]ury proceeding was impaired . . . by the alleged false testimony” (People v Klosin, 281 AD2d 951, 951 [2001], lv denied 96 NY2d 864 [2001]).

Defendant failed to renew his motion for a trial order of dis-