Summary
holding that defense counsel's failure to timely facilitate defendant's intention to testify before grand jury did not, per se, amount to denial of effective assistance of counsel
Summary of this case from Simpson v. ConwayOpinion
Argued November 14, 1996
Decided December 18, 1996
APPEAL, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 4, 1995, which (1) reversed, on the law, a judgment of the Supreme Court (Donald Grajales, J., on motion to dismiss indictment; Maurice Brill, J., at trial and sentence), rendered in Kings County upon a verdict convicting defendant of robbery in the third degree and grand larceny in the fourth degree, and (2) dismissed the indictment with leave to the People to resubmit the matter to another Grand Jury.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Diane R. Eisner and Roseann B. MacKechnie of counsel), for appellant.
Hancock Estabrook, LLP, Syracuse (Patrick M. Connors of counsel), for respondent.
People v Wiggins, 225 A.D.2d 1117, reversed.
MEMORANDUM.
The order of the Appellate Division should be reversed and the judgment of conviction reinstated.
The sole issue raised on this appeal is whether defendant suffered ineffective assistance of counsel warranting the Appellate Division's reversal and a new trial. Defense counsel's lapse consisted of failing to notice a scheduled appearance and to show up at the designated time to attend upon defendant's opportunity to testify before the Grand Jury ( see, CPL 190.50).
Defendant Wiggins was charged in a two-count indictment with grand larceny in the fourth degree and robbery in the third degree. During his arraignment, he timely served notice of intention to testify before the Grand Jury ( see, CPL 190.50 [a]). The People served a reciprocal notice indicating the date and time defendant was scheduled to testify ( see, CPL 190.50 [b]). Defense counsel did not arrive at the Grand Jury appointment until after an indictment had been voted and declined the People's offer to have his client appear before the same Grand Jury after that point.
Defendant instead timely moved to dismiss the indictment, claiming that he had been denied the opportunity to testify before the Grand Jury. Supreme Court denied defendant's motion and reargument application. After trial and a jury verdict, defendant was convicted of grand larceny in the fourth degree and robbery in the third degree. The Appellate Division reversed on the law only on ineffective assistance of counsel grounds, based on the default in the appearance before the Grand Jury. The court dismissed the indictment with leave to re-present. It otherwise reviewed and found no error in the trial and judgment of conviction. A Judge of this Court granted leave to the People and we now reverse.
Effective assistance of counsel is satisfied "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v Baldi, 54 N.Y.2d 137, 147; see, People v Helm, 51 N.Y.2d 853). Defense counsel's failure to timely facilitate defendant's intention to testify before the Grand Jury does not, per se, amount to a denial of effective assistance of counsel under the circumstance of this case ( see, People v Sturgis, 199 A.D.2d 549, 550, lv denied 84 N.Y.2d 833; contrast, People v Jimenez, 180 A.D.2d 757).
Notably, when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred (CPL 210.30; see, People v Huston, 88 N.Y.2d 400, 411). To elevate the kind of representational lapse, as occurred here at the Grand Jury phase, to an automatic delayed reversal device would be anomalous in the face of these overarching guideposts.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order reversed and judgment of Supreme Court, Kings County, reinstated in a memorandum.