
    The People of the State of New York, Appellant, v Larry Smith, Also Known as Keith Gates, Also Known as Edwin Kevin Fischer, Respondent.
    [621 NYS2d 4]
   —Order, Supreme Court, New York County (Daniel FitzGerald, J.), entered on or about May 28, 1992, which dismissed the indictment with leave to re-present, unanimously affirmed.

In 1990, defendant, testifying before the Grand Jury in another case, denied—allegedly falsely—the existence of a 1977 robbery conviction. He was indicted for perjury in 1992 in connection with such denial. Now, in the instant case, he has been accused of grand lárceny. After defendant notified the People of Ms intent to testify before the Grand Jury, the People notified Ms counsel thát Ms credibility would be impeached by questioning about the 1977 robbery and that Ms response might be used against him in the pending 1992 perjury case. When defendant’s motion for an order precluding such inquiry was denied, defendant elected not to testify. After indictment, defendant made a motion to dismiss pursuant to CPL 190.50 (5) (c), alleging that his decision not to testify was made under duress and consequently, his right to testify was violated. That motion was granted.

"[A] defendant does not, by testifying, automatically and generally waive the privilege against self-incrimination with respect to questions concerning pending unrelated criminal charges.” (People v Betts, 70 NY2d 289, 292.) Although a defendant who asserts his right to testify in the Grand Jury must sign a waiver of immunity “stipulating that he waives his privilege against self-incrimination” (CPL 190.45 [1]; 190.50 [5] [b]), the defendant does not thereby waive his constitutional right not to incriminate himself as to pending charges (People v Betts, supra). Accordingly, the ruling that defendant could be questioned regarding the 1977 robbery effectively prevented him from exercising his statutory right to testify before the Grand Jury and the court correctly dismissed the indictment under CPL 190.50 (5) (c). Concur— Rosenberger, J. P., Wallaeh, Kupferman, Ross and Williams, JJ.  