| People v Caban |
| 2011 NY Slip Op 08504 [89 AD3d 1321] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Luis Caban,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine Henley of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered January 8, 2010, convicting defendant upon his plea of guilty of the crime of attemptedassault in the second degree.
Defendant, a prison inmate, was charged in a two-count indictment with crimes arising out of theassault of two correction officers in April 2009. Pursuant to a plea agreement, defendant pleaded guiltyto one count of attempted assault in the second degree in satisfaction of the indictment and wassentenced as a second felony offender to a prison term of 1½ to 3 years to be servedconsecutively to the term for which he was currently incarcerated. Defendant now appeals.
We affirm. Defendant first argues that he was deprived of his statutory right to testify at the grandjury proceedings (see CPL 190.50 [5] [a]). Any motion to dismiss based on such allegedviolation must be made no later than five days after arraignment on the indictment or such challenge willbe deemed waived (see CPL 190.50 [5] [c]; People v Rolle, 72 AD3d 1393, 1395 [2010], lv denied 16NY3d 745 [2011]; People v Boodrow,42 AD3d 582, 584 [2007]). County Court properly denied defendant's motion here inasmuch ashis arraignment took place on July 9, 2009 and his motion to dismiss on such ground was not filed withthe court until August 25, 2009 (see People vWeis, 56 AD3d 900, 902 [2008], lv denied 12 NY3d 763 [2009]; [*2]People v Boodrow, 42 AD3d at 584). In any event, there is noevidence in the record that defendant served the required written notice on the District Attorneyregarding his desire to testify (see CPL 190.50 [5] [a]). The record contains only anunnotarized letter dated May 21, 2009 in which defendant purports to notify the District Attorney of hisdesire to testify. To the contrary, an affidavit submitted by the record keeper for the WashingtonCounty District Attorney's office detailed the procedures employed when such letters are received andstated that a diligent search of defendant's file and the correspondence log revealed that no letter hadbeen received. As such, we find that defendant failed to carry his burden of establishing that the letterwas actually received by the District Attorney (see People v Logan, 305 AD2d 797, 798[2003], lv denied 100 NY2d 584 [2003]; People v Brown, 300 AD2d 918, 919[2002], lv denied 100 NY2d 536 [2003]). Defendant's related argument that the indictmentwas not supported by legally sufficient evidence was waived by virtue of his valid guilty plea (see People v Herringshaw, 83 AD3d1133, 1134 [2011]; People vHeller, 67 AD3d 1253, 1254 [2009]; People v Cintron, 62 AD3d 1157, 1158 [2009], lv denied 13NY3d 742 [2009]).
The gravamen of defendant's claim that he was denied the effective assistance of counsel is thatcounsel failed to timely file the motion to dismiss based upon the denial of his right to testify before thegrand jury. However, "ineffective assistance does not result from counsel's failure to 'make [or moreenthusiastically support] a motion or argument that has little or no chance of success' " (People v Weatherspoon, 86 AD3d792, 793 [2011], quoting People vCaban, 5 NY3d 143, 152 [2005]; see People v Washington, 85 AD3d 1303, 1304 [2011]). To the extentthat defendant challenges the balance of his representation, we note that counsel made appropriatepretrial motions, was well prepared for all proceedings and garnered defendant an advantageous plea(see People v Moreno, 86 AD3d863, 865 [2011]; People vShurock, 83 AD3d 1342, 1344 [2011]).
Finally, the sentence agreed upon and imposed cannot be considered harsh or excessive inasmuchas it was the minimum permissible term for defendant's offense (see Penal Law § 70.06[3] [e]; [4] [b]; § 110.05 [6]; § 120.05; People v Terpening, 79 AD3d 1367, 1368 [2010], lv denied 16NY3d 837 [2011]).
Peters, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.