| People v Carlton |
| 2014 NY Slip Op 06018 [120 AD3d 1443] |
| September 4, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJamel Carlton, Appellant. |
Tara Brower Wells, Latham, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 17, 2011, convicting defendant upon his plea of guilty of thecrime of criminal possession of stolen property in the fourth degree.
After a traffic stop around 12:30 a.m. on May 10, 2011, defendant was arrested forunlawful possession of marihuana and aggravated unlicensed operation of a motorvehicle, and on an outstanding warrant for unrelated charges. After it was determinedthat items found in a purse recovered from defendant's vehicle during the traffic stop hadbeen taken from their owner by defendant and others during a gun-point robbery, he wascharged by felony complaint with three counts of criminal possession of stolen propertyin the fourth degree. Following a preliminary hearing on the felony complaint, CountyCourt determined that there was reasonable cause to believe that defendant hadcommitted the felony of criminal possession of stolen property in the fourth degree andheld the matter over for grand jury action. An Ulster County grand jury thereaftercharged defendant with three counts of criminal possession of stolen property in thefourth degree, and his motion to dismiss the indictment for failure to afford him anopportunity to testify before the grand jury was denied. Defendant thereafter entered aguilty plea to one count of criminal possession of stolen property in the fourth degree insatisfaction of all charges in the indictment, and received the agreed-upon prisonsentence, as a second felony offender, of 2 to 4 years, with restitution. Defendant nowappeals.
[*2] By pleading guilty, defendantforfeited the claims that he was entitled to notice of the grand jury proceedings anddenied his statutory right to testify (see CPL 190.50 [5] [a]; People v Steed, 17 AD3d928, 929 [2005], lv denied 5 NY3d 770 [2005]; People v Harris, 293AD2d 818, 819 [2002], lv denied 98 NY2d 676 [2002]; People v Grey,135 AD2d 1031, 1031 [1987]; see also People v Taylor, 65 NY2d 1, 5 [1985]).Defendant's "appearance before the Grand Jury would have been for the purpose ofgiving testimony relating to his guilt or innocence" (People v Grey, 135 AD2d at1032), and "his plea of guilty removed this issue from the case" (People v Harris,293 AD2d at 819). Moreover, the record reflects that, after the preliminary hearing, thefelony complaint was "disposed of" and defendant was held for grand jury action (CPL180.70 [1]) and, as such, he was no longer subject to an "undisposed of felonycomplaint" in a local criminal court so as to entitle him to notice of grand juryproceedings under CPL 190.50 (5) (a) (see People v Boodrow, 42 AD3d 582, 584 [2007]; People v Brooks, 26 AD3d739, 740 [2006], lvs denied 6 NY3d 846, 7 NY3d 810 [2006]).
Next, defendant's insistence that he would not have pleaded guilty but for counsel'salleged deficiencies is undermined by the fact that, while he complained about therepresentation at sentencing, he declined County Court's invitation to withdraw his guiltyplea. Even assuming that defense counsel failed to facilitate defendant's appearance at thegrand jury, which is not established in the record, this would be insufficient to constituteineffective assistance of counsel; defendant has not shown that he was prejudiced by thatfailure, nor made any showing that the outcome would have been different had hetestified (see People vSimmons, 10 NY3d 946, 949 [2008]; People v Lasher, 74 AD3d 1474, 1475-1476 [2010], lvdenied 15 NY3d 894 [2010]). Moreover, counsel vigorously represented defendantat the preliminary hearing, timely moved to dismiss the indictment pursuant to CPL190.50 (5) (a) based upon the one-day notice provided of the grand jury proceedings, andobtained a favorable plea deal, and the record as a whole reflects that counsel providedmeaningful representation (see People v Henry, 95 NY2d 563, 565 [2000]). Tothe extent that defendant raises claims regarding what counsel advised him orinvestigated, they concern matters outside the record on appeal, which are more properlyaddressed in a motion to vacate the judgment pursuant to CPL article 440 (see People v Haffiz, 19 NY3d883, 885 [2012]; People vMorey, 110 AD3d 1378, 1379-1380 [2013], lv denied 23 NY3d 965[2014]), and his contentions that he was not apprised of his potential sentencing exposureor the parameters of the plea agreement are belied by the record.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.