| People v Gainer |
| 2010 NY Slip Op 04469 [73 AD3d 1385] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Melvin F.Gainer III, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Peters, J. Appeals (1) from a judgment of the County Court of Chemung County (Buckley,J.), rendered February 11, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree, and (2) by permission, from anorder of said court, entered May 4, 2009, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree and was sentenced to four years in prison followed bytwo years of postrelease supervision. Thereafter, defendant made a pro se motion pursuant toCPL 440.10 to vacate the judgment of conviction on the ground that he was denied the effectiveassistance of counsel because his attorney failed to seek dismissal of the indictment on the basisof an allegedly meritorious statutory speedy trial claim (see CPL 30.30 [1]). CountyCourt denied that motion without a hearing. Defendant now appeals from both the judgment ofconviction and, by permission, the order denying his CPL article 440 motion.
We note preliminarily that the People announced their readiness for trial within six monthsof the commencement of the criminal action and the record reveals no postreadiness delaychargeable to the prosecution (see CPL 30.30 [1]; see generally People v Robinson, 67 AD3d 1042, 1044-1045[2009], lv denied 13 NY3d 910 [2009]). Accordingly, County Court properly denieddefendant's CPL article 440 motion.
Turning to defendant's direct appeal from the judgment of conviction, defendant's sole claimis that he was denied the effective assistance of counsel during the grand jury proceedings.Contrary to his assertion, however, the record reveals that he was assigned counsel beforeevidence was presented to the grand jury (compare People v Lincoln, 80 AD2d 877, 877[1981]) and, more importantly, at no point throughout the entire criminal action did defendantexpress a [*2]desire to have testified before the grand jury ormove to dismiss the indictment on the basis that he had not been afforded reasonable notice ofthe grand jury proceedings pursuant to CPL 190.50 (5) (a) (see People v Thomas, 60 AD3d 1341, 1342 [2009], lvdenied 12 NY3d 921 [2009]; cf. People v Fields, 258 AD2d 593, 593-594 [1999]).Nevertheless, to the extent that defendant's argument may be construed as asserting that counselfailed to advise him of his right to testify before the grand jury, such failure, without more, doesnot warrant a finding that he was denied the effective assistance of counsel (see People v Simmons, 10 NY3d946, 949 [2008]; People vScudds, 62 AD3d 1165, 1166-1167 [2009], lv denied 12 NY3d 929 [2009]; People v Weis, 56 AD3d 900,901-902 [2008], lv denied 12 NY3d 763 [2009]). Moreover, defendant does not claimthat the outcome would have been different had he testified before the grand jury (see Peoplev Simmons, 10 NY3d at 949; People v Hodges, 246 AD2d 824, 826 [1998]) and,indeed, the record as a whole clearly demonstrates that defendant was afforded meaningfulrepresentation (see People v Scudds, 62 AD3d at 1167).
Cardona, P.J., Mercure, Kavanagh and Garry, JJ., concur. Ordered that the judgment andorder are affirmed.