| People v Weems |
| 2009 NY Slip Op 02823 [61 AD3d 472] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kevin Weems, Appellant. |
—[*1] Kevin Weems, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Melissa Pennington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., at dismissal motion;Arlene Goldberg, J., at suppression hearing, plea and sentence), rendered November 7, 2005,convicting defendant of criminal possession of a controlled substance in the fifth degree, andsentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, including its resolution of minor discrepancies in theofficers' testimony (see People v Prochilo, 41 NY2d 759, 761 [1977]).
Since defendant pleaded guilty with the assistance of new counsel, he forfeited the right toargue that he was denied the opportunity to testify before the grand jury as a result of his priorattorney's conduct (see People v Petgen, 55 NY2d 529, 534-535 [1982]; People vBostick, 235 AD2d 287 [1997], lv denied 89 NY2d 1089 [1997]). In any event, evenassuming the prior attorney withdrew defendant's request to testify without consulting her client,this did not constitute ineffective assistance (see People v Wiggins, 89 NY2d 872[1996]; People v Nobles, 29 AD3d429 [2006], lv denied 7 NY3d 792 [2006]). There is no reason to believe thattestimony from defendant would have affected the result of the grand jury proceeding.Defendant's arguments that he was "effectively unrepresented" or represented by "conflicted"counsel as the result of his attorney's failure to carry out his wish to testify before the grand juryare without merit (see People vSimmons, 10 NY3d 946, 948 [2008]; see also People v Ferguson, 67 NY2d 383,390 [1986]; People v Cox, 19 Misc 3d 1129[A], 2007 NY Slip Op 52553[U] [Sup Ct,NY County 2007]).
We have considered and rejected defendant's remaining claims, including those contained inhis pro se supplemental brief. Concur—Tom, J.P., Andrias, Buckley and DeGrasse, JJ.