| People v Bond |
| 2013 NY Slip Op 07081 [110 AD3d 1366] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Larry E. Bond II, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Otsego County (Lambert,J.), rendered December 19, 2011, upon a verdict convicting defendant of the crime ofburglary in the second degree.
Defendant was caught entering the second story window of a home and charged inlocal criminal court with two counts of burglary in the second degree on September 2,2010. On January 10, 2011, he waived indictment in County Court and agreed to beprosecuted by superior court information charging him with burglary in the third degree.The People filed a statement of readiness on that same date. Thereafter, the Peopleobtained an indictment charging defendant with burglary in the second degree basedupon the same facts alleged in the original charges, and they again declared theirreadiness at defendant's arraignment on the indictment on September 19, 2011. After ajury trial, defendant was convicted as charged.
On appeal, defendant contends that his speedy trial rights were violated because, heasserts, the indictment vitiated the original statement of readiness, and the September2011 statement of readiness was beyond the six-month time limit as measured from thecommencement of the action in September 2010. He waived this claim, however, byfailing to move to dismiss the indictment prior to the commencement of trial (seeCPL 210.20 [2]; People v Lawrence, 64 NY2d 200, 203-204 [1984]; People v Garcia, 33 AD3d1050, 1051 [2006], lv [*2]denied 9 NY3d844 [2007]). In any event, the claim is without merit as the indictment is "directlyderived" from the original accusatory instrument (CPL 1.20 [16]). Thus, it not onlyrelates back to the commencement of the action, but also to the initial announcement ofreadiness (see People vFarkas, 16 NY3d 190, 193 [2011]; People v Sinistaj, 67 NY2d 236, 239[1986]; People v Bjork, 105AD3d 1258, 1259 [2013], lv denied 21 NY3d 1040 [2013]; People v Galloway, 93 AD3d1069, 1070 [2012], lv denied 19 NY3d 996 [2012]).
We must also reject defendant's argument that the failure to move to dismiss onspeedy trial grounds rises to the level of ineffective assistance of counsel, as counselshould not be criticized for failing to pursue a potentially futile endeavor (see People v Caban, 5 NY3d143, 152 [2005]; People vBahr, 96 AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]; People v Perea, 27 AD3d960, 961 [2006]). Nor are we persuaded by defendant's remaining claims ofineffective assistance. Simply stated, counsel's representation was meaningful anddefendant has not demonstrated the absence of any strategic or other legitimateexplanations for the alleged failings (see People v Harvey, 96 AD3d 1098, 1100 [2012], lvdenied 20 NY3d 933 [2012]; People v Wicks, 73 AD3d 1233, 1236 [2010], lvdenied 15 NY3d 857 [2010]; People v Cole, 35 AD3d 911, 913 [2006], lvdenied 8 NY3d 944 [2007]).
Lahtinen, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.