Opinion
December 21, 1990
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Dillon, P.J., Denman, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that his conviction for criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, should be reversed because the indictment was filed more than two years after commission of the crime (see, CPL 30.10 [c]). By failing to submit a written motion to dismiss the indictment within 45 days after arraignment, defendant waived his right to a determination of that issue (see, CPL 210.20 [f]; [2]; 210.45 [1]; 255.10 [1] [a]; 255.20 [1]; contra, see, People v. Perico, 143 Misc.2d 961) and has failed to preserve the issue for appellate review. There is no merit to defendant's assertion that the People's failure to commence the prosecution within the statutory time period constitutes a jurisdictional defect (see, People v. Kohut, 30 N.Y.2d 183; People v. Dickson, 133 A.D.2d 492, 495).
Defendant also contends that, because his trial counsel failed to move timely to dismiss the indictment, he was denied his constitutional right to effective assistance of counsel. The failure to make a pretrial motion, even one that might be successful, does not, per se, constitute ineffective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 709). In this case, trial counsel filed omnibus motions, made cogent opening and closing statements, adequately cross-examined prosecution witnesses, made appropriate objections, presented a reasonable defense, and significantly, was successful in obtaining the dismissal of the three other counts of the indictment, all of which were felony counts. Under the circumstances, counsel's representation, viewed in its entirety, was meaningful (see, People v. Carter, 154 A.D.2d 883, lv. denied 74 N.Y.2d 947). Moreover, defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to move against the indictment (see, People v. Rivera, supra; People v. Houston, 158 A.D.2d 971, lv. denied 75 N.Y.2d 967). We note, in this respect, that trial counsel moved to dismiss the misdemeanor count of the indictment posttrial and after all of the felony charges had been dismissed.