PEOPLE v. DIXON (2005)

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered February 11, 2003, convicting defendant, after a jury trial, of arson in the second degree (two counts) and arson in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's evaluation of expert testimony.   Contrary to defendant's argument, the evidence established that defendant damaged his prison cell by setting a fire (see People v. Jackson, 265 A.D.2d 343, 696 N.Y.S.2d 75 [1999], lv. denied 94 N.Y.2d 824, 702 N.Y.S.2d 594, 724 N.E.2d 386 [1999] ).

 The court's response to a note from the deliberating jury was meaningful and appropriately conveyed the applicable legal principles (see People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ).   The court reasonably concluded that the jury was seeking a simplified explanation of the elements of the charged crimes and the court's response provided the jury with the guidance it was seeking (see People v. Williams, 297 A.D.2d 565, 566 [2002], lv. denied 99 N.Y.2d 566, 754 N.Y.S.2d 218, 784 N.E.2d 91 [2002] ).

 Defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   The failure of defendant's original attorney to file a timely motion to dismiss the indictment pursuant to CPL 190.50(5)(c), standing alone, did not constitute ineffective assistance (see People v. Hook, 246 A.D.2d 470, 668 N.Y.S.2d 183 [1998], lv. denied 92 N.Y.2d 853, 677 N.Y.S.2d 84, 699 N.E.2d 444 [1998] ).   There is no indication that had defendant been afforded an opportunity to testify before the grand jury, the outcome of the proceedings would have been affected (see People v. Harrison, 304 A.D.2d 376, 377, 758 N.Y.S.2d 300 [2003], lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003];  People v. Williams, 291 A.D.2d 347, 739 N.Y.S.2d 664 [2002], lv. denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237 [2002] ).