Opinion
1997-02281
Submitted February 19, 2002.
March 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered February 26, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Martin Geoffrey Goldberg, Franklin Square, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Marybeth Ayres of counsel), for respondent.
Before: DAVID S. RITTER, J.P., CORNELIUS J. O'BRIEN, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the judgment is affirmed.
The defendant contends that he was denied his statutory right to testify before the Grand Jury. However, by failing to move to dismiss the indictment within five days of his arraignment, the defendant waived that contention (see, CPL 190.50[c]; People v. DiGabriele, 262 A.D.2d 331; People v. Obee, 232 A.D.2d 430, 431; People v. Valle, 198 A.D.2d 459). We find no factual support in the record for the allegation that the five-day limit was extended.
The defendant contends that he was denied the effective assistance of counsel due to defense counsel's failure to make a timely motion pursuant to CPL 190.50. Failure to make such a motion, standing alone, does not constitute the denial of effective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872, 873; People v. DiGabriele, supra).
RITTER, J.P., O'BRIEN, CRANE and COZIER, JJ., concur.