| People v Kinlock |
| 2008 NY Slip Op 10067 [57 AD3d 1227] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David Kinlock,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Cardona, P.J. Appeal, by permission, from an order of the County Court of Ulster County (Bruhn,J.), entered August 29, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting him of the crime of rape in the third degree, without a hearing.
In satisfaction of a two-count indictment, defendant pleaded guilty to rape in the third degree andwas sentenced to a term of imprisonment of 1 to 3 years to run concurrently with a sentence he wasalready serving. Thereafter, defendant brought this CPL 440.10 motion seeking principally to vacatethe judgment of conviction on the ground that the People allegedly deprived him of the right to testifybefore the grand jury pursuant to CPL 190.50 (5) (a). County Court denied the motion without ahearing. Defendant now appeals, by permission of this Court.
Significantly, a defendant's objections to the People's notice of presentment of an indictment arewaived by a failure to move to dismiss the indictment within five days after the arraignment (seeCPL 190.50 [5] [c]; People v Wright, 5AD3d 873, 874 [2004], lv denied 3 NY3d 651 [2004]). Inasmuch as defendant firstraised the issue of lack of notice nine months after his arraignment, County Court properly denied hismotion as untimely.
We are also unpersuaded by defendant's contention that his CPL article 440 motion [*2]should have been granted because of ineffective assistance of counsel.While defendant did indicate in his supporting affidavit attached to this motion that one of the groundsfor relief was "[i]neffective counsel," he provided no further elaboration for that claim aside fromasserting that the People's failure to provide him with notice deprived him of "the right to effectively usecounsel." Significantly, even if we accepted defendant's argument that he was not provided notice, adefense counsel's conduct in not moving "to dismiss the indictment based on the prosecution's failure toafford defendant an opportunity to testify before the grand jury, without more, is insufficient todemonstrate ineffective assistance, particularly where defendant failed to demonstrate an absence ofstrategic or legitimate reasons for counsel's failure to pursue this course of action" (People v Miller, 12 AD3d 852, 854[2004], lv denied 4 NY3d 765 [2005]). Given defendant's failure to articulate a viable claim ofineffective assistance of counsel, County Court's denial of the motion to vacate was appropriate.
Carpinello, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed.