The motion court erred in denying defendant’s motion to dismiss the indictment pursuant to CPL 190.50. Defendant served notice on the prosecution that he wanted to testify before the grand jury at his initial arraignment on a felony complaint. A first indictment was subsequently dismissed on the ground that defendant was not afforded an opportunity to testify before the grand jury. It is undisputed that the People were aware that defendant wanted to testify at the re-presentation of the case to the grand jury.
When a second indictment was issued following a grand jmy proceeding at which defendant did not appear, defendant’s counsel moved to dismiss, stating that he had never received any notice from the People concerning the date for the new grand jury presentation, written or otherwise. In response, the
Under these circumstances, we find that the People failed to meet their burden of showing that they provided defendant actual notice of the scheduled grand jury proceeding (see People v Crisp, 246 AD2d 84, 86-87 [1st Dept 1998], adhered to on rearg 268 AD2d 247 [1st Dept 2000], lv denied 94 NY2d 946 [2000]). In the absence of any competent proof of mailing, by way of affidavit of service, proof of regular office practice, or otherwise, we find no basis upon which to presume receipt (see e.g. Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161 [2005]).
We have considered and rejected the People’s preservation and other procedural arguments. While the People argue that the record is insufficient to permit review, any insufficiency is the result of the People’s failure to present proof of mailing in response to counsel’s clearly-articulated denial of receipt.
In light of this determination, which dismisses the indictment, we find it unnecessary to address defendant’s remaining arguments. Concur — Gonzalez, PJ., Saxe, DeGrasse, Freedman and Román, JJ.