| People v Scudds |
| 2009 NY Slip Op 03966 [62 AD3d 1165] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Noel Scudds,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Lahtinen, J. Appeal, by permission, from an order of the County Court of Rensselaer County(Jacon, J.), entered May 21, 2008, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment convicting him of the crime of criminal possession of a forged instrument inthe second degree, without a hearing.
Defendant pleaded guilty to criminal possession of a forged instrument in the second degreein satisfaction of an eight-count indictment. As part of the bargained-for plea, defendant was toreceive a prison sentence of 2 to 4 years, which was to run concurrently with a two-yeardeterminate sentence imposed in Saratoga County on an unrelated charge, and he was to waivehis right to appeal and make restitution in the amount of $30,000. At sentencing, 47 days after heentered his plea of guilty, defendant complained that he had been denied an opportunity to testifybefore the grand jury. After a brief discussion, County Court granted the oral motion ofdefendant's retained counsel for reassignment of counsel to pursue a postjudgment motion basedon defendant's claim that he had been denied his statutory right to testify before the grand jury,and then proceeded to impose the agreed-upon sentence and defendant executed a written waiverof appeal.
A motion by defendant's newly assigned counsel pursuant to CPL 440.10 (1) (h) followed,demanding, among other things, that defendant's judgment of conviction be vacated [*2]because defendant had been denied his constitutionally protectedright to the effective assistance of counsel. County Court denied the motion without a hearing,and permission to appeal from that order was granted by order of this Court (see CPL460.15).
The limited issue we are to decide in this appeal distills to whether defense counsel's failureto secure defendant's appearance before the grand jury and his failure to timely move to dismissthe indictment on the ground that defendant was not afforded his statutory right to testify beforethe grand jury (see CPL 190.50 [5] [c]) amounted to a denial of defendant'sconstitutional right to the effective assistance of counsel. Under the circumstances of this case,we think not. The record clearly shows that counsel provided defendant with meaningfulrepresentation, the standard for evaluating ineffective assistance of counsel claims (seePeople v Henry, 95 NY2d 563, 565 [2000]). Defendant's counsel negotiated a very favorabledisposition that provided for the sentence imposed to run concurrently with a sentence imposedon an unrelated conviction in Saratoga County. The sentencing minutes indicate that defendantdiscussed this issue with his retained counsel multiple times, he had no desire to move towithdraw his plea and he signed a written waiver of appeal at sentencing. Significantly, noappeal was taken from the judgment of conviction. "To elevate the kind of representational lapse,as [may have] occurred here at the [g]rand [j]ury phase, to an automatic delayed reversal devicewould be anomalous in the face of these overarching guideposts" (People v Wiggins, 89NY2d 872, 874 [1996]; see e.g. Peoplev Kinlock, 57 AD3d 1227, 1228 [2008]; People v Miller, 12 AD3d 852, 854 [2004], lv denied 4NY3d 765 [2005]).
Peters, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed.