| People v McCray |
| 2018 NY Slip Op 07256 [165 AD3d 595] |
| October 30, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert McCray, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Stephen Chu of counsel),for appellant.
Darcel D. Clark, District Attorney, Bronx (Cynthia A. Carlson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (George Villegas, J. at CPL 190.50 motion; MartinMarcus, J. at jury trial and sentencing), rendered November 6, 2014, convicting defendant ofarson in the second degree and criminal contempt in the first degree (three counts), andsentencing him to an aggregate term of 18 years, unanimously affirmed.
The court properly dismissed, as untimely, defendant's CPL 190.50 motion to dismiss theindictment on the ground that defendant was deprived of his right to testify before the grand jury.Contrary to defendant's assertion, the court specifically extended the deadline to file that motionto October 3, 2012, and not to October 18, the deadline to file other motions.
The court providently exercised its discretion in denying defense counsel's request for a CPLarticle 730 examination (see Pate v Robinson, 383 US 375 [1966]; People vTortorici, 92 NY2d 757, 766 [1999], cert denied 528 US 834 [1999]; People vMorgan, 87 NY2d 878, 879-880 [1995]). Although defendant engaged in obstreperousbehavior and made false or disruptive remarks, the record does not cast doubt on his ability tounderstand the proceedings and assist in his defense (see e.g. People v Taylor, 92 AD3d 556,557 [1st Dept 2012]).
The court properly found that defendant forfeited his right to be present at trial (seeCPL 260.20) through his frequent outbursts and interruptions of the proceedings, after the courtrepeatedly warned him that he would be removed from the courtroom if he continued suchbehavior (see People v Edwards, 265 AD2d 220 [1st Dept 1999], lv denied 94NY2d 879 [2000]). Defendant was first removed during the prosecutor's summation due to hisinterruption of the prosecutor; defendant was brought back to the courtroom for jurydeliberations with a final warning, but then properly removed when he interrupted the court'sresponse to a jury note (see e.g. People v Valdes, 283 AD2d 187 [1st Dept 2001], lvdenied 97 NY2d 688 [2001]). Defendant's right to be present was forfeited, rather thanwaived (see People v Corley, 67 NY2d 105, 110 [1986]), and thus his argumentsconcerning waiver are misplaced.
Defendant's ineffective assistance of counsel claim regarding the untimeliness of thedismissal motion is unavailing, because defendant has not shown prejudice under the state orfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Stricklandv Washington, 466 US 668 [1984]). Defendant has not shown any reason to believe that hemight have avoided indictment had there been a second grand jury presentation (see People v Simmons, 10 NY3d946, 949 [2008]). Defendant's claim that he received ineffective assistance at sentencing isunreviewable on direct appeal, in the absence of a CPL 440.10 motion, because it [*2]involves matters not reflected in, or fully explained by, the record(see People v Rivera, 71 NY2d 705, 709 [1988]).
We perceive no basis for reducing the sentence. Concur—Richter, J.P.,Manzanet-Daniels, Kapnick, Kern, Moulton, JJ.