Opinion
2011-11-23
The PEOPLE of the State of New York, Respondent,v.Luis CABAN, Appellant.
Melissa A. Latino, Albany, for appellant.
Kevin C. Kortright, District Attorney, Fort Edward (Katherine Henley of counsel), for respondent.
Before: PETERS, J.P., SPAIN, McCARTHY, GARRY and EGAN JR., JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 8, 2010, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
Defendant, a prison inmate, was charged in a two-count indictment with crimes arising out of the assault of two correction officers in April 2009. Pursuant to a plea agreement, defendant pleaded guilty to one count of attempted assault in the second degree in satisfaction of the indictment and was sentenced as a second felony offender to a prison term of 1 1/2 to 3 years to be served consecutively to the term for which he was currently incarcerated. Defendant now appeals.
We affirm. Defendant first argues that he was deprived of his statutory right to testify at the grand jury proceedings ( see CPL 190.50[5][a] ). Any motion to dismiss based on such alleged violation must be made no later than five days after arraignment on the indictment or such challenge will be deemed waived ( see CPL 190.50[5][c]; People v. Rolle, 72 A.D.3d 1393, 1395, 900 N.Y.S.2d 187 [2010], lv. denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011]; People v. Boodrow, 42 A.D.3d 582, 584, 841 N.Y.S.2d 384 [2007] ). County Court properly denied defendant's motion here inasmuch as his arraignment took place on July 9, 2009 and his motion to dismiss on such ground was not filed with the court until August 25, 2009 ( see People v. Weis, 56 A.D.3d 900, 902, 867 N.Y.S.2d 250 [2008], lv. denied 12 N.Y.3d 763, 876 N.Y.S.2d 715, 904 N.E.2d 852 [2009]; People v. Boodrow, 42 A.D.3d at 584, 841 N.Y.S.2d 384). In any event, there is no evidence in the record that defendant served the required written notice on the District Attorney regarding his desire to testify ( see CPL 190.50[5][a] ). The record contains only an unnotarized letter dated May 21, 2009 in which defendant purports to notify the District Attorney of his desire to testify. To the contrary, an affidavit submitted by the record keeper for the Washington County District Attorney's office detailed the procedures employed when such letters are received and stated that a diligent search of defendant's file and the correspondence log revealed that no letter had been received. As such, we find that defendant failed to carry his burden of establishing that the letter was actually received by the District Attorney ( see People v. Logan, 305 A.D.2d 797, 798, 761 N.Y.S.2d 111 [2003], lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003]; People v. Brown, 300 A.D.2d 918, 919, 752 N.Y.S.2d 755 [2002], lv. denied 100 N.Y.2d 536, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003] ). Defendant's related argument that the indictment was not supported by legally sufficient evidence was waived by virtue of his valid guilty plea ( see People v. Herringshaw, 83 A.D.3d 1133, 1134, 920 N.Y.S.2d 470 [2011]; People v. Heller, 67 A.D.3d 1253, 1254, 889 N.Y.S.2d 297 [2009]; People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ).
The gravamen of defendant's claim that he was denied the effective assistance of counsel is that counsel failed to timely file the motion to dismiss based upon the denial of his right to testify before the grand jury. However, “ineffective assistance does not result from counsel's failure to ‘make [or more enthusiastically support] a motion or argument that has little or no
chance of success' ” ( People v. Weatherspoon, 86 A.D.3d 792, 793, 927 N.Y.S.2d 217 [2011], quoting People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]; see People v. Washington, 85 A.D.3d 1303, 1304, 924 N.Y.S.2d 668 [2011] ). To the extent that defendant challenges the balance of his representation, we note that counsel made appropriate pretrial motions, was well prepared for all proceedings and garnered defendant an advantageous plea ( see People v. Moreno, 86 A.D.3d 863, 865, 927 N.Y.S.2d 487 [2011]; People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011] ).
Finally, the sentence agreed upon and imposed cannot be considered harsh or excessive inasmuch as it was the minimum permissible term for defendant's offense ( see Penal Law § 70.06[3][e]; [4][b]; § 110.05[6]; § 120.05; People v. Terpening, 79 A.D.3d 1367, 1368, 912 N.Y.S.2d 776 [2010], lv. denied 16 N.Y.3d 837, 921 N.Y.S.2d 201, 946 N.E.2d 189 [2011] ).
ORDERED that the judgment is affirmed.
PETERS, J.P., SPAIN, GARRY and EGAN JR., JJ., concur.