PEOPLE v. GOMEZ (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted assault in the second degree (Penal Law §§ 110.00, 120.05[1] ) and assault in the second degree (§ 120.05[2] ).   Defendant contends that he received ineffective assistance of counsel because his first assigned counsel did not inform the People that defendant wanted to testify before the grand jury.   We reject that contention (see People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Dixon, 19 A.D.3d 131, 131-132, 795 N.Y.S.2d 587, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157;  People v. Gibson, 2 A.D.3d 969, 973, 768 N.Y.S.2d 511, lv. denied 1 N.Y.3d 627, 777 N.Y.S.2d 26, 808 N.E.2d 1285).   Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We reject the further contention of defendant that County Court erred in allowing the People to introduce evidence of his prior drug dealing activity.   That evidence was relevant with respect to the issue of defendant's motive for the assault, and the probative value of that evidence outweighed its prejudicial effect (see People v. Till, 87 N.Y.2d 835, 836-837, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Smith, 12 A.D.3d 1106, 784 N.Y.S.2d 810, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143).   We also reject defendant's contention that the persistent felony offender statutes are unconstitutional (see People v. Rivera, 5 N.Y.3d 61, 63, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 334-335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160), and we conclude that the court properly adjudicated defendant a persistent felony offender.   The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: