PEOPLE v. RAMIREZ (2007)

Judgment, Supreme Court, Bronx County (William I. Mogulescu, J. on dismissal motion;  Seth L. Marvin, J. at jury trial and sentence), rendered June 22, 2005, convicting defendant of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 15 years, respectively, and order, same court (Seth L. Marvin, J.), entered on or about August 2, 2006, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The People were not required to obtain the court's permission to re-present defendant's case to a second grand jury, because the fact that there were insufficient votes at the first grand jury presentation for either a true bill or a dismissal was not the equivalent of a dismissal (People v. Morrison, 34 A.D.3d 398, 823 N.Y.S.2d 898 [2006], lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 558, 868 N.E.2d 241 [2007] ).   In any event, the People did seek such permission, which the court properly granted on the basis of the first grand jury's failure to agree (see People v. Pryor, 5 A.D.3d 222, 223, 772 N.Y.S.2d 823 [2004], lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576 [2004] ).

There is no merit to defendant's claim that his attorney provided ineffective assistance in connection with the motion to dismiss the indictment as defective.

We perceive no basis for reducing the sentence.