PEOPLE v. MCCRAY (2018)

Judgment, Supreme Court, Bronx County (George Villegas, J. at CPL 190.50 motion;  Martin Marcus, J. at jury trial and sentencing), rendered November 6, 2014, convicting defendant of arson in the second degree and criminal contempt in the first degree (three counts), and sentencing him to an aggregate term of 18 years, unanimously affirmed.

The court properly dismissed, as untimely, defendant's CPL 190.50 motion to dismiss the indictment on the ground that defendant was deprived of his right to testify before the grand jury.  Contrary to defendant's assertion, the court specifically extended the deadline to file that motion to October 3, 2012, and not to October 18, the deadline to file other motions.

The court providently exercised its discretion in denying defense counsel's request for a CPL article 730 examination (see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 [1966];  People v. Tortorici, 92 N.Y.2d 757, 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999];  People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ).  Although defendant engaged in obstreperous behavior and made false or disruptive remarks, the record does not cast doubt on his ability to understand the proceedings and assist in his defense (see e. g. People v. Taylor, 92 A.D.3d 556, 557, 938 N.Y.S.2d 545 [1st Dept. 2012] ).

The court properly found that defendant forfeited his right to be present at trial (see CPL 260.20) through his frequent outbursts and interruptions of the proceedings, after the court repeatedly warned him that he would be removed from the courtroom if he continued such behavior (see People v. Edwards, 265 A.D.2d 220, 697 N.Y.S.2d 256 [1st Dept. 1999], lv denied 94 N.Y.2d 879, 705 N.Y.S.2d 11, 726 N.E.2d 488 [2000] ).  Defendant was first removed during the prosecutor's summation due to his interruption of the prosecutor;  defendant was brought back to the courtroom for jury deliberations with a final warning, but then properly removed when he interrupted the court's response to a jury note (see e.g. People v. Valdes, 283 A.D.2d 187, 726 N.Y.S.2d 8 [1st Dept. 2001], lv denied 97 N.Y.2d 688, 738 N.Y.S.2d 305, 764 N.E.2d 409 [2001] ).  Defendant's right to be present was forfeited, rather than waived (see People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090 [1986] ), and thus his arguments concerning waiver are misplaced.

Defendant's ineffective assistance of counsel claim regarding the untimeliness of the dismissal motion is unavailing, because defendant has not shown prejudice under the state or 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];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).  Defendant has not show any reason to believe that he might have avoided indictment had there been a second grand jury presentation (see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008] ).  Defendant's claim that he received ineffective assistance at sentencing is unreviewable on direct appeal, in the absence of a CPL 440.10 motion, because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).

We perceive no basis for reducing the sentence.