PEOPLE v. SAVAREESE (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered September 5, 1997, convicting him of robbery in the first degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The contention of the defendant that he was denied his statutory right to testify before the Grand Jury (see, CPL 190.50[5][a] ), is without merit.   The evidence adduced supports the court's conclusion that the defendant's failure to testify was of his own creation.   Although given an opportunity to testify and provided with two attorneys to represent him, the defendant became belligerent toward both counsel and refused to go into the Grand Jury room, claiming, without explanation, that he needed more time to prepare and to compose himself.   In any event, it is well settled that defense counsel's failure to effectuate the defendant's intention to testify, standing alone, would not amount to the denial of effective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845).

 The court properly exercised its discretion when it denied the defendant's request for an adjournment to locate a defense witness (see, People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003;  People v. Foy, 32 N.Y.2d 473, 346 N.Y.S.2d 245, 299 N.E.2d 664).   The court had already granted one adjournment for this purpose, and the defendant did not demonstrate due diligence in locating the witness (see, People v. Singleton, supra;  People v Perez, 249 A.D.2d 492, 671 N.Y.S.2d 675).   Defense counsel had not spoken with the witness the entire year since the crime, had not obtained any written statement from him, and no subpoena was ever issued.   The court's ruling was clearly appropriate.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.