| People v Hardy |
| 2008 NY Slip Op 02309 [49 AD3d 1232] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v J.W. Hardy,Jr., Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (Robert C. Noonan, J.), renderedMarch 2, 2006. The judgment convicted defendant, upon a jury verdict, of escape in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of escape inthe second degree (Penal Law § 205.10 [2]), defendant contends that the conviction is notsupported by legally sufficient evidence because he was not in custody when he fled thecourthouse. We reject that contention. During an appearance before County Court while releasedon bail and awaiting sentencing on his conviction of criminal possession of a controlledsubstance in the fifth degree, defendant's bail was increased by the court and defendant washandcuffed by sheriff's deputies and seated in a hallway of the courthouse. Defendant fled thecourthouse while the sheriff's deputies waited for the court clerk to prepare a securing ordercommitting defendant to the Sheriff's custody. We conclude that defendant was in custody for thepurposes of section 205.10 (2) at the time that he escaped from the courthouse because, eventhough the securing order had not yet been signed by the court, he was under "restraint by apublic servant pursuant to . . . an order of a court" (§ 205.00 [2]).
Defendant waived his contention that he was wrongfully denied the opportunity to appearbefore the grand jury by failing to move to dismiss the indictment within five days following hisarraignment (see CPL 190.50 [5] [c]; People v Beyor, 272 AD2d 929, 930[2000], lv denied 95 NY2d 832 [2000]). Contrary to defendant's further contention,defense counsel's failure to make a timely motion to dismiss the indictment on that ground, "'without more, is insufficient to demonstrate ineffective assistance, particularly where[, as here,the] defendant fail[s] to demonstrate an absence of strategic or legitimate reasons for counsel'sfailure to pursue [that] course of action' " (People v Hibbard, 27 AD3d 1196, 1197 [2006], lv denied 7NY3d 790 [2006]). Indeed, the record establishes that defense counsel identified specificstrategic reasons for declining to move to dismiss the indictment on that ground and discussedthem at length with defendant.
Finally, we reject the further contention of defendant that the court erred in denying hismotion to set aside the verdict pursuant to CPL 330.30 (1) based on ineffective assistance of[*2]counsel without conducting a hearing. Defendant's motion didnot raise a "ground appearing in the record" (CPL 330.30 [1]) and, to the extent that it concernsmatters outside the record on appeal, the proper procedural vehicle is a motion pursuant to CPL440.10 (see People v Sweet, 30AD3d 1080 [2006], lv denied 7 NY3d 795 [2006]). Present—Scudder, P.J.,Hurlbutt, Lunn, Pine and Gorski, JJ.