Opinion
KA 99-05477.
November 21, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Cornelius, J.), entered December 8, 1998, convicting defendant upon his plea of guilty of robbery in the first degree.
Mark D. Funk, Rochester, for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Daniel P. Majchrzak, Jr., of Counsel), for Plaintiff-Respondent.
Before: Present: Green, J.P., Wisner, Hurlbutt, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15) and sentencing him as a second felony offender to a determinate term of incarceration of 10 years. The contention that defendant was denied effective assistance of counsel as a result of his first attorney's failure to notify the prosecution of defendant's desire to testify before the grand jury depends on facts outside the record and therefore must be raised by way of a motion pursuant to CPL article 440 ( see People v. Nicholson, 269 A.D.2d 868, 869, lv denied 95 N.Y.2d 907; People v. Parker, 220 A.D.2d 815, 817, lv denied 87 N.Y.2d 1023; see also People v. Galleria, 264 A.D.2d 899, lv denied 94 N.Y.2d 880). In any event, even assuming, arguendo, that defendant's contention survives the guilty plea ( but see People v. Lewis, 296 A.D.2d 864 ), we conclude that "defense counsel's failure to notify the People that defendant wished to testify before the grand jury does not, by itself, amount to ineffective assistance of counsel" ( People v. Dennis, 295 A.D.2d 755, 756, lv denied 99 N.Y.2d 534; see People v. Wiggins, 89 N.Y.2d 872, 873; People v. Mejias, 293 A.D.2d 819, 820, lv denied 98 N.Y.2d 699). There is also no merit to defendant's contention that the plea was invalid, and the right to effective assistance of counsel violated, as a result of counsel's error in informing defendant that the bargainedfor 10-year determinate sentence was the "minimum" possible term of incarceration ( see People v. Garcia, 92 N.Y.2d 869, 870-871; People v. Modica, 64 N.Y.2d 828, 829; People v. Jackson, 278 A.D.2d 875, lv denied 96 N.Y.2d 759; People v. Cave, 278 A.D.2d 941, lv denied 96 N.Y.2d 798).