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

The PEOPLE of the State of New York, Respondent, v. Henry EDWARDS, Defendant-Appellant.

Decided: August 17, 2006

BUCKLEY, P.J., FRIEDMAN, NARDELLI, SWEENY, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael Ambrecht, J.), rendered January 3, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to 3 to 6 years, unanimously affirmed.   Judgment, same court (Budd Goodman, J.), rendered January 21, 2003, convicting defendant, upon his plea of guilty, of violating the terms of his probation, revoking his probation and sentencing him to 1 to 3 years, to run consecutively to the sentence imposed on January 3, 2003, unanimously affirmed.

 It is settled that the People maintain broad discretion in presenting a case to the Grand Jury and “need not seek [out] evidence favorable to the defendant or present all of their evidence tending to exculpate the accused” (People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 626 N.E.2d 630 [1993];  People v. Ramjit, 203 A.D.2d 488, 489, 612 N.Y.S.2d 600 [1994], lv. denied 84 N.Y.2d 831, 617 N.Y.S.2d 151, 641 N.E.2d 172 [1994] ).   Moreover, it is not required that every complete defense suggested by the evidence be charged to the Grand Jury, rather, the test of whether a defense need be charged rests upon “its potential for eliminating a needless or unfounded prosecution” (People v. Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418 [1984];  People v. Samuels, 12 A.D.3d 695, 698, 785 N.Y.S.2d 485 [2004] ), which requires more than mere allegations from the defendant (People v. Mitchell, 82 N.Y.2d at 514-515, 605 N.Y.S.2d 655, 626 N.E.2d 630;  People v. Brunson, 226 A.D.2d 1093, 641 N.Y.S.2d 935 [1996], lv. dismissed 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613 [1996] ).   Here, the fact that the People did not charge entrapment to the Grand Jury was not reversible error, for other than defendant's allegations, the evidence, encompassing the testimony of the police officers involved and defendant's prior arrest record, including a conviction for selling 30 glassine envelopes of heroin to an undercover police officer, did not support that defense such that this could be considered a needless or unfounded prosecution.

 Defendant's claim of ineffective assistance of counsel, to the extent it is reviewable on the existing record, is unavailing, as defendant received effective assistance of counsel 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];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Not only did defense counsel obtain an acquittal on the top count of criminal sale of a controlled substance in or near school grounds, but had counsel, as defendant insists, pursued an entrapment defense, he risked exposing his client to having the jury made aware of his prior narcotics conviction.

Finally, defendant provides us with no grounds to set aside his conviction of violating the terms of his probation.