| People v Lasher |
| 2010 NY Slip Op 04877 [74 AD3d 1474] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Stacy Lasher,Appellant. |
—[*1]
Spain, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered May 30, 2008in Schenectady County, upon a verdict convicting defendant of the crimes of burglary in thethird degree and attempted petit larceny.
Defendant was arrested and charged with burglary in the third degree and attempted petitlarceny after being found by police in a building under renovation located in the City ofSchenectady, Schenectady County. Defendant claimed that he had come to the building to lookfor work, and had entered through the basement window to use the bathroom. Defendant wassubsequently indicted for these crimes; he did not file a notice of intent to testify before thegrand jury proceeding (see CPL 190.50 [5]) and did not so testify. At his initialappearance in County Court (Drago, J.) at which defendant was to be arraigned on theindictment, defendant claimed[FN*]that counsel had disregarded his request to testify before the grand jury and requested theassignment of new counsel. Counsel replied on the record that his strategy had been to negotiatea favorable plea prior to an indictment and he had discussed with defendant his desire to testifyat the grand jury, which counsel advised against, believing it "might do him more harm. . . than good."
County Court appointed substitute counsel, who thereafter moved pursuant to CPL 190.50(5) to dismiss the indictment based upon defendant's affidavit asserting that counsel's failure toabide his request to file a notice of intent to testify deprived him of his right to testify. CountyCourt denied the motion. A jury trial was held in Supreme Court, at which defendant pursued thedefense theory that defendant lacked any intent to commit a crime inside the building. Defendantdid not testify. Convicted as charged, defendant was sentenced as a second felony offender to aprison term of 3½ to 7 years. Defendant appeals, solely arguing that counsel's failure to filea notice of intent to testify before the grand jury operated to deprive him of the effectiveassistance of counsel.
We affirm. Initially, as a factual matter, the record is not clear whether counsel anddefendant reached an agreement regarding whether defendant would testify before the grandjury, i.e., whether defendant heeded counsel's advice against it or counsel overrode defendant'srequest to so testify. No evidentiary hearing was held on defendant's CPL 190.50 (5) motion todismiss the indictment (cf. People vWeis, 56 AD3d 900, 902 [2008], lv denied 12 NY3d 763 [2009]; People vDickens, 259 AD2d 450, 451 [1999], lv denied 93 NY2d 1002 [1999]), and CountyCourt did not resolve this issue, as its holding denying dismissal was limited to the conclusionthat the decision whether a defendant testifies before the grand jury is a strategic one made bydefense counsel. Thus, these factual allegations are outside the record on appeal and could onlybe determined in a motion pursuant to CPL 440.10 (1) (f) (see e.g. People v Scudds, 62 AD3d 1165, 1166 [2009], lvdenied 12 NY3d 929 [2009]; People v Weis, 56 AD3d at 902).
Even assuming the facts to be as defendant claims, however, "failure of defense counsel tofacilitate defendant's testimony before the grand jury does not, per se, amount to the denial ofeffective assistance of counsel" (Peoplev Simmons, 10 NY3d 946, 949 [2008]; see People v Wiggins, 89 NY2d 872,873 [1996]; People v Santiago, 72AD3d 492, 492-493 [2010]; Peoplev Perez, 67 AD3d 1324, 1325 [2009], lv denied 13 NY3d 941 [2010];People v Scudds, 62 AD3d at 1166-1167; People v Weems, 61 AD3d 472 [2009], lv denied 13 NY3d750 [2009]; People v Weis, 56 AD3d at 902). In contrast to a defendant's right to testifyat trial, a defendant's right to testify before the grand jury is a limited statutory right (seePeople v Smith, 87 NY2d 715, 719 [1996]; People v Santiago, 72 AD3d at492-493). The fact that a defense counsel's strategic decision not to facilitate a defendant's desireto testify at the grand jury does not constitute per se error (see People v Simmons, supra;People v Wiggins, supra) strongly supports the conclusion that—unlike certainfundamental decisions as whether to testify at trial, which are reserved to the defendant (seePeople v White, 73 NY2d 468, 478 [1989], cert denied 493 US 859 [1989];People v Ferguson, 67 NY2d 383, 390 [1986]; see also Jones v Barnes, 463 US745, 751 [1983]; People v Rosen, 81 NY2d 237, 244 [1993]; People v Parker,290 AD2d 650, 651 [2002], lv denied 97 NY2d 759 [2002])—with respect to"strategic and tactical decisions" like testifying before the grand jury, defendants represented bycounsel "are deemed to repose decision-making authority in their lawyers" (People vColon, 90 NY2d 824, 826 [1997]).
Under the circumstances of this case, defendant has not shown "that he was prejudiced bythe failure of his attorney to effectuate his [intentions or] appearance before the grand jury [and]. . . there is no claim that had he testified in the grand jury, the outcome would havebeen different" (People v Simmons, 10 NY3d at 949; accord People v Santiago,72 AD3d at 492; see People v Weems, 61 AD3d at 472). The record demonstrates that,prior to being relieved, counsel provided meaningful representation, repeatedly meeting withdefendant at the jail before the grand jury met and advised him how best to proceed; counselworked to negotiate a favorable preindictment plea agreement while making a sound strategicdecision that defendant should not testify before the grand jury (see People v Henry, 95NY2d 563, 565 [2000]; People v Wiggins, 89 NY2d at 873; People v Scudds, 62AD3d at 1167). Further, substitute counsel—whose effectiveness defendant does notchallenge—was appointed and represented defendant on the CPL 190.50 motion (seePeople v Dickens, 259 AD2d at 451), affording him a full opportunity to demonstrateprejudice, which he failed to do. Thus, defendant's contention lacks merit.
Cardona, P.J., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant also asserted that,when arraigned in local criminal court represented by prior counsel, he had signed a notice ofintent to testify before the grand jury, but did not allege that it had been filed or given to counsel.