PEOPLE v. WILLIAMS (2002)

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered October 5, 1999, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

 Viewing the record as a whole, we find that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   The fact that defendant's original attorney made an untimely motion to dismiss the indictment on the ground that defendant had been deprived by the People of his right to testify before the Grand Jury, resulting in the denial of that motion for untimeliness, was insufficient to establish ineffective assistance (People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Hook, 246 A.D.2d 470, 668 N.Y.S.2d 183, lv. denied 92 N.Y.2d 853, 677 N.Y.S.2d 84, 699 N.E.2d 444) People v. Bundy, 186 A.D.2d 357, 588 N.Y.S.2d 167, lv. denied 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775.   Even assuming that the original attorney had made a timely and successful motion and that defendant had testified before the Grand Jury on the second presentation, there is no indication that defendant's testimony would have affected the result of the proceedings.   In any event, it should be noted that defendant pleaded guilty, and that a guilty plea generally forfeits procedural challenges to the Grand Jury process (People v. Hansen, 95 N.Y.2d 227, 715 N.Y.S.2d 369, 738 N.E.2d 773).  “Likewise such a plea, entered on advice of competent counsel, constitutes a forfeiture of a claim of prior ineffective assistance of counsel on the part of a former attorney where the full measure of the asserted derelictions of the first attorney were known to the second attorney who nonetheless counseled acceptance of the plea.”   (People v. Petgen, 55 N.Y.2d 529, 532, 450 N.Y.S.2d 299, 435 N.E.2d 669).

Defendant's constitutional challenge to the procedure under which he was sentenced as a second violent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v. Rosen, 96 N.Y.2d 329, 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).