Opinion
892 KA 14-01862
03-19-2021
The PEOPLE of the State of New York, Respondent v. Charles J. WASHINGTON, Defendant-Appellant.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of one count of criminal contempt in the first degree ( Penal Law § 215.51 [c] ) and seven counts of aggravated family offense (§ 240.75 [1]). We reject defendant's contention that he was deprived of effective assistance of counsel. With respect to defendant's claim that defense counsel was ineffective for purportedly failing to discuss with him his right to testify before the grand jury, defendant has not established "that he was prejudiced by that purported failure or that the outcome would have been different if he had testified" ( People v. Lostumbo , 182 A.D.3d 1007, 1009, 123 N.Y.S.3d 319 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 821, 151 N.E.3d 502 [2020] ; see People v. Hogan , 26 N.Y.3d 779, 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ; People v. Robinson , 151 A.D.3d 1701, 1701, 53 N.Y.S.3d 858 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Indeed, we note that defendant testified at trial and was nonetheless found guilty (see Hogan , 26 N.Y.3d at 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 ; Lostumbo , 182 A.D.3d at 1009, 123 N.Y.S.3d 319 ). Furthermore, we reject defendant's claim that defense counsel was ineffective for failing to discuss with him his rights to a speedy trial under CPL 30.30 and for waiving those rights without his consent (see generally People v. Strauss , 179 A.D.3d 1487, 1489, 118 N.Y.S.3d 841 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020], reconsideration denied 35 N.Y.3d 1049, 127 N.Y.S.3d 824, 151 N.E.3d 505 [2020] ; People v. Wheeler , 159 A.D.3d 1138, 1141-1142, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).
Defendant's contention that the accusatory instrument filed in Rochester City Court is facially insufficient is academic in light of the subsequent indictment issued by the grand jury (see People v. Hart , 25 A.D.3d 815, 816, 807 N.Y.S.2d 681 [3d Dept. 2006], lv denied 6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006] ; see also People v. Washington , 173 A.D.3d 1644, 1645-1646, 102 N.Y.S.3d 823 [4th Dept. 2019], lv denied 34 NY3d 985, 113 N.Y.S.3d 647, 673, 137 N.E.3d 17, 43 [2019]; People ex rel. Van Steenburg v. Wasser , 69 A.D.3d 1135, 1136, 893 N.Y.S.2d 379 [3d Dept. 2010], lv denied in part and dismissed in part 14 N.Y.3d 883, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010] ).
We have reviewed defendant's remaining contentions and conclude that they do not warrant modification or reversal of the judgment.