PEOPLE v. WEEMS (2009)

Judgment, Supreme Court, New York County (Gregory Carro, J. at dismissal motion;  Arlene Goldberg, J. at suppression hearing, plea and sentence), rendered November 7, 2005, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, including its resolution of minor discrepancies in the officers' testimony (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

 Since defendant pleaded guilty with the assistance of new counsel, he forfeited the right to argue that he was denied the opportunity to testify before the grand jury as a result of his prior attorney's conduct (see People v. Petgen, 55 N.Y.2d 529, 534-535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982];  People v. Bostick, 235 A.D.2d 287, 653 N.Y.S.2d 303 [1997], lv. denied 89 N.Y.2d 1089, 660 N.Y.S.2d 382, 682 N.E.2d 983 [1997] ).   In any event, even assuming the prior attorney withdrew defendant's request to testify without consulting her client, this did not constitute ineffective assistance (see People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996];  People v. Nobles, 29 A.D.3d 429, 815 N.Y.S.2d 77 [2006], lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 [2006] ).   There is no reason to believe that testimony from defendant would have affected the result of the grand jury proceeding.   Defendant's arguments that he was “effectively unrepresented” or represented by “conflicted” counsel as the result of his attorney's failure to carry out his wish to testify before the grand jury are without merit (see People v. Simmons, 10 N.Y.3d 946, 948, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008];  see also People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986];  People v. Cox, 19 Misc.3d 1129(A), 2007 WL 5160499 [Sup. Ct., N.Y. County 2007] ).

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.