| People v Griffith |
| 2010 NY Slip Op 06813 [76 AD3d 1102] |
| September 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dexter Griffith, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered January 3, 2005, convicting him of criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, all of the defendant's arguments on appeal regarding theSupreme Court's Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974])are preserved for appellate review (see CPL 470.05 [2]). Nonetheless, the Sandovalruling was not an improvident exercise of the Supreme Court's discretion (see People vBennette, 56 NY2d 142, 148 [1982]; People v Torres, 12 AD3d 539, 540 [2004]; People vMorales, 273 AD2d 102 [2000]; People v Creel, 215 AD2d 577, 578 [1995];People v Moise, 199 AD2d 423, 424 [1993]; People v Reyes, 121 AD2d 575[1986]).
The defendant's contention in his supplemental pro se brief that he was deprived of his rightto testify before the grand jury is without merit. Criminal Procedure Law § 190.50 (5) (a)provides a defendant with the right to testify before the grand jury "if, prior to the filing of anyindictment . . . in the matter, he serves upon the district attorney of the county awritten notice making such request." Notwithstanding the defendant's claim that he told hisattorney of his desire to testify before the grand jury, there is no evidence in the record that eitherhe or his attorney served the required written notice on the District Attorney (see CPL190.50 [5] [a]). Consequently, the defendant's motion to dismiss the indictment on the groundthat he was not accorded an opportunity to appear and testify before the grand jury was properlydenied (see CPL 210.20 [1] [c]; 210.35 [4]; 190.50 [5] [a]; People v Smith, 18 AD3d 888[2005]; People v Rogers, 228 AD2d 623 [1996]). Moreover, even if defense counselfailed to act on the defendant's desire to testify before the grand jury, any failure on the part ofcounsel to so act would not, under the circumstances of this case, amount to the denial of theeffective assistance of counsel (seePeople v Simmons, 10 NY3d 946, 949 [2008]; People v Wiggins, 89 NY2d 872,873 [1996]; People v Lasher, 74 AD3d [*2]1474 [2010];People v Beecham, 74 AD3d1216 [2010]; People v Williams, 301 AD2d 669, 670 [2003]).
The defendant's remaining contentions raised in his supplemental pro se brief regarding hispre-arraignment detention are without merit (see CPL 180.80; People v Fagan, 53 AD3d 983,984 [2008]; Romeo v County of Oneida, 135 AD2d 1099, 1100 [1987]). Mastro, J.P.,Skelos, Roman and Sgroi, JJ., concur.