Opinion
December 15, 1986
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the defendant's conviction of menacing to three months' imprisonment. As so modified, the judgment is affirmed.
The trial court did not abuse its discretion in striking Mrs. Plastini's testimony inasmuch as the evidence sought to be introduced was not relevant (see, People v. Daly, 98 A.D.2d 803, 805, affd 64 N.Y.2d 970).
The defendant further contends that the Grand Jury proceedings were defective inasmuch as the prosecutor read to the Grand Jury Penal Law § 160.10 (2) (a) rather than Penal Law § 160.10 (2) (b). The defendant's motion to dismiss the indictment was denied by Justice Colabella. Despite the fact that the prosecutor erred by reading a different paragraph than the one for which the defendant was indicted, this court is precluded from reviewing the pretrial denial of the motion to dismiss the indictment if the judgment of conviction is "based upon legally sufficient trial evidence" (CPL 210.30). Therefore, as there was sufficient evidence to support the defendant's conviction as to robbery in the second degree, we may not review Justice Colabella's decision (CPL 210.30; cf. People v. Dearstyne, 50 A.D.2d 1029, 1030).
The defendant's claim that he was denied the effective assistance of counsel is without merit inasmuch as the record reflects that trial counsel provided meaningful representation to him (see, People v. Baldi, 54 N.Y.2d 137, 146-147; People v Satterfield, 66 N.Y.2d 796).
Finally, the trial court, inter alia, sentenced the defendant to a determinate term of six months' imprisonment on the menacing charge. Since menacing is a class B misdemeanor (see, Penal Law § 120.15), the maximum sentence is three months (see, Penal Law § 70.15). Therefore, the sentence has been modified to the extent indicated. Niehoff, J.P., Rubin, Eiber and Kunzeman, JJ., concur.