| People v James |
| 2012 NY Slip Op 00995 [92 AD3d 1207] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Elliott I.James, Also Known as Pig, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedApril 21, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toCattaraugus County Court for the filing of a predicate felony statement and resentencing inaccordance with the following memorandum: Defendant appeals from a judgment convictinghim, upon a jury verdict, of criminal possession of a controlled substance in the third degree(Penal Law § 220.16 [1]). Defendant's general motion for a trial order of dismissal failed topreserve for our review his contention that the conviction is not supported by legally sufficientevidence (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]) and, in any event,defendant failed to renew that motion after presenting evidence (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Drennan, 81 AD3d 1279,1280 [2011], lv denied 16 NY3d 858 [2011], 17 NY3d 816 [2011]). Viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We also reject the contention of defendant that he was denied effective assistance of counselbased on the failure of defense counsel to assert defendant's right to testify before the grand jury.Such failure "does not, per se, amount to a denial of effective assistance of counsel under thecircumstance of this case" (People v Wiggins, 89 NY2d 872, 873 [1996]; see People v Simmons, 10 NY3d946, 949 [2008]). Defendant has not established that "he was prejudiced by the failure of[defense counsel] to effectuate his appearance before the grand jury" or that, "had he testified inthe grand jury, the outcome would have been different" (Simmons, 10 NY3d at 949). Tothe extent that defendant contends he was denied effective assistance of counsel when defensecounsel allegedly took a position that was adverse to defendant, that contention is based uponmatters outside the record on appeal and thus must be raised by way of motion pursuant to CPL[*2]article 440 (see People v Johnson, 81 AD3d 1428 [2011], lv denied 16NY3d 896 [2011]).
We agree with defendant, however, that his waiver of a new presentence report was invalidpursuant to CPL 390.20 (4) (a) and that the People erred in failing to file a predicate felonystatement. Where, as here, "an indeterminate or determinate sentence of imprisonment [was] tobe imposed," a waiver of the presentence report was not authorized (CPL 390.20 [4] [a]; see People v Shapard, 59 AD3d1054 [2009]). We further conclude that the People's failure to file a predicate felonystatement is not harmless (cf. People v Bouyea, 64 NY2d 1140, 1142 [1985]).
In addition, defendant's sentence is illegal insofar as the period of postrelease supervisionexceeds three years (see Penal Law § 70.45 [2] [d]; § 70.70 [3] [b]). Wetherefore modify the judgment by vacating the sentence, and we remit the matter to County Courtfor the filing of a predicate felony statement and resentencing after preparation of a presentencereport.
In light of our determination, we do not reach defendant's remaining contention.Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.