| People v Ronk |
| 2018 NY Slip Op 01502 [159 AD3d 1129] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Darren W. Ronk, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Nicole Valentina Romano ofcounsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 25, 2014, upon a verdict convicting defendant of the crimes of aggravatedunlicensed operation of a motor vehicle in the first degree, driving while intoxicated, criminalmischief in the fourth degree and resisting arrest.
Defendant was arrested for, among other things, aggravated unlicensed operation of a motorvehicle in the first degree. After extended plea negotiations, the People notified defendant'scounsel of a grand jury presentation scheduled for the following week. Counsel sent the People aletter indicating that she had difficulty contacting defendant because he had been moved from thelocal jail, and stating that she had received inconsistent information from defendant, including aletter from him speaking about accepting a plea offer and also indicating that he would like to beproduced for the grand jury. The next day, counsel sent the People a second letter stating that shedid not have any better answer from defendant but felt he should be brought back to preserve hisright to testify at the grand jury, and asking that a transport order be arranged for that purpose.The People presented the case to the grand jury without defendant's testimony and obtained anindictment.
Defendant moved to dismiss the indictment, alleging that the People improperly presentedthe case to a grand jury without affording him an opportunity to appear and testify even thoughhe had requested to do so in writing. County Court denied the motion. Following trial, defendantwas convicted of aggravated unlicensed operation of a motor vehicle in the first degree, drivingwhile intoxicated, criminal mischief in the fourth degree and resisting arrest. [*2]County Court imposed a prison sentence of 1
County Court did not err in denying defendant's motion to dismiss the indictment. A courtmay dismiss an indictment if the defendant had previously served the People with written noticeof his or her intent to testify before the grand jury but was not permitted to so testify (seeCPL 190.50 [5]; 210.35 [4]). The request or notice to the People must unequivocally informthem of the defendant's intention to testify (see People v Argentieri, 66 AD3d 558, 559 [2009], lvdenied 14 NY3d 769 [2010]; see also People v Harris, 150 AD2d 723, 724 [1989]).The defendant bears the burden of establishing that he or she provided the People with therequired notice (see People v Torres,14 AD3d 801, 802 [2005], lv denied 4 NY3d 836 [2005]).
Here, counsel's letters expressed her uncertainty regarding defendant's wishes and, as CountyCourt concluded, the "request to produce the defendant was not to effect his testimony before the[g]rand [j]ury, it was to resolve the equivocation on whether he wanted to testify." Counsel didnot provide the People with the letter that she had received from defendant, and her descriptionof it did not definitively convey that defendant wanted to testify. Because defendant did notestablish that he provided the People with a clear request that he be allowed to testify before thegrand jury, they were not required to arrange for his appearance as a witness (see id.).Thus, the court properly denied defendant's motion to dismiss the indictment.
Defendant has not demonstrated that counsel's failure to secure his testimony before thegrand jury constituted a deprivation of the effective assistance of counsel. "[F]ailure of defensecounsel to facilitate defendant's testimony before the grand jury does not, per se, amount to thedenial of effective assistance of counsel" (People v Simmons, 10 NY3d 946, 949 [2008]; see People vWiggins, 89 NY2d 872, 873 [1996]; People v Lasher, 74 AD3d 1474, 1475-1476 [2010], lvdenied 15 NY3d 894 [2010]). Defendant has not shown that he was prejudiced by counsel'sfailure to effectuate his appearance before the grand jury, he offers only speculation that theoutcome in the grand jury would have been different had he testified, and we note that defendantdid not testify at trial (see People v Simmons, 10 NY3d at 949; People v Soler, 100 AD3d 1554,1554 [2012], lv denied 20 NY3d 1104 [2013]; People v Lasher, 74 AD3d at1476). Accordingly, defendant has not established that he was deprived of meaningfulrepresentation.
Lynch, Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment is affirmed.