| People v Santiago |
| 2010 NY Slip Op 02980 [72 AD3d 492] |
| April 13, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benjamin Santiago, Appellant. |
—[*1] Benjamin Santiago, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Philip J. Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (James A. Yates, J.), rendered June 26, 2007,as amended August 24, 2007, convicting defendant, after a jury trial, of robbery in the first andthird degrees and criminal possession of a weapon in the third degree, and sentencing him, as asecond violent felony offender, to an aggregate term of 13 years, and order, same court andJustice, entered on or about October 17, 2008, which denied defendant's CPL 440.10 motion tovacate the judgment, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility, including its resolution of inconsistencies in testimony. The credibleevidence established that defendant used force to retain stolen merchandise.
The court properly denied defendant's motion to dismiss the indictment. In that motion,defendant claimed he was deprived of his right to testify before the grand jury, and that hisattorney rendered ineffective assistance by disregarding defendant's desire to so testify. Evenassuming the facts to be as defendant claims, this case is indistinguishable from People v Simmons (10 NY3d 946[2008]), where "defendant failed to establish that he was prejudiced by the failure of his attorneyto effectuate his appearance before the grand jury. Significantly, there is no claim that had hetestified in the grand jury, the outcome would have been different" (id. at 949). Onappeal, defendant offers no claim of prejudice except that his counsel relinquished defendant'spurportedly personal right to testify before the grand jury. This argument incorrectly equates theright to testify before the grand jury with the right to testify at trial, and essentially argues for thetype of per se rule that Simmons, as well as People v Wiggins (89 NY2d 872[1996]) declined to adopt (see People vMoore, 61 AD3d 494 [2009], lv denied 12 NY3d 918[*2][2009]; People v Cox, 19 Misc 3d 1129[A], 2007 NY SlipOp 52553[U] [Sup Ct, NY County 2007]).
The court properly exercised its discretion in denying defendant's CPL 440 motion withoutholding a hearing, since the trial record and defendant's submissions on the motion weresufficient to establish that the motion was without merit (see CPL 440.30 [2]; Peoplev Satterfield, 66 NY2d 796, 799-800 [1985]; People v Jon, 26 AD3d 245 [2006], lv denied 6 NY3d 849[2006]).
We have considered and rejected defendant's pro se arguments. Concur—Mazzarelli,J.P., Sweeny, Renwick, Freedman and RomÁn, JJ.