PEOPLE v. MADSEN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven MADSEN, Defendant-Appellant.

Decided: October 20, 1998

Before NARDELLI, J.P., and WALLACH, TOM and ANDRIAS, JJ. Susan Axelrod, for Respondent. Georgia J. Hinde, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Allen Alpert, J., at hearing;  Rena Uviller, J., at plea and sentence), rendered March 26, 1997, convicting defendant of attempted burglary in the first degree, and sentencing him, as a second felony offender, to a determinate term of 5 years, unanimously affirmed.

 By pleading guilty, defendant waived his contention that he was denied his right to testify before the Grand Jury (People v. Harrison, 249 A.D.2d 113, 670 N.Y.S.2d 113, lv. denied 92 N.Y.2d 853, 677 N.Y.S.2d 83, 699 N.E.2d 443;  People v. Mathis, 241 A.D.2d 337, 659 N.Y.S.2d 36).   Moreover, his motion to dismiss the indictment pursuant to CPL 190.50(5)(c) was properly denied since he failed to file any written notice of his intention to testify before the Grand Jury prior to the filing of the indictment, a requirement that is strictly enforced (People v. Clay, 248 A.D.2d 180, 669 N.Y.S.2d 813).

 Defendant has failed to satisfy his burden of demonstrating that the lineup procedures were unduly suggestive (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709), since his assertions that the complainant must have seen him at the precinct before the lineup was conducted and that the subsequent identification was tainted by comments made to the complainant by the police officers are based on mere speculation.

 Defendant has failed to establish any factual basis for his claim that his attorney simultaneously represented the codefendant, and has further failed to establish that any conflict that would have arisen because of the purported joint representation “operated” on the case (People v. Allen, 88 N.Y.2d 831, 644 N.Y.S.2d 478, 666 N.E.2d 1351;  People v. Recupero, 73 N.Y.2d 877, 538 N.Y.S.2d 234, 535 N.E.2d 287).

MEMORANDUM DECISION.