PEOPLE v. FORD (2006)

Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered August 29, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/212 to 9 years, and order, same court and Justice, entered on or about April 28, 2004, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

 The court did not threaten defendant with a higher sentence if he chose to testify.   Upon learning that defendant wished to testify against the advice of counsel, the court warned defendant to approach such a decision cautiously.   In the context of this warning, the court advised defendant of his possible sentencing exposure, and such advice was not coercive (cf. People v. Cornelio, 227 A.D.2d 248, 642 N.Y.S.2d 648 [1996], lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615 [1996] ).

 Regardless of whether or not a court officer communicated to the jury that the items it requested were not available because they were not in evidence, such a communication is a ministerial function that may be performed by nonjudicial personnel (People v. Miller, 8 A.D.3d 176, 177, 779 N.Y.S.2d 187 [2004], affd. 6 N.Y.3d 295, 812 N.Y.S.2d 20, 845 N.E.2d 451 [2006] ).   Accordingly, there is no basis for either a new trial or further fact-finding proceedings.

The court properly denied defendant's CPL 440.10 motion without a hearing (see People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ).   Based on the trial record and the submissions on the motion, we find that counsel provided effective assistance under the state and federal standards (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 prosecutor's cross-examination of defendant before the grand jury was within proper bounds (see People v. Karp, 76 N.Y.2d 1006, 565 N.Y.S.2d 751, 566 N.E.2d 1156 [1990], revg. on dissenting opn. of Sullivan, J., 158 A.D.2d 378, 385-390, 551 N.Y.S.2d 503 [1990] ).

We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see e.g. People v. Davis, 10 A.D.3d 583, 584, 782 N.Y.S.2d 86, lv. denied 4 N.Y.3d 743, 790 N.Y.S.2d 655, 824 N.E.2d 56 [2004] ).