PEOPLE v. GALLERIA

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

The PEOPLE of the State of New York, Respondent, v. Myodi D. GALLERIA, Appellant.

Decided: September 23, 1999

Before:  CARDONA, P.J., CREW III, SPAIN, GRAFFEO and MUGGLIN, JJ. Marshall Nadan, Kingston, for appellant. Donald A. Williams, District Attorney (Joan Gudesblatt Lamb of counsel), Kingston, for respondent.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 7, 1997 in Ulster County, upon a verdict convicting defendant of the crimes of burglary in the second degree and petit larceny.

 Following a jury trial, defendant was convicted of the crimes of burglary in the second degree and petit larceny.   Defendant's CPL 330.30 motion to set aside the verdict was denied.   He now appeals from the judgment of conviction, arguing that he was denied the effective assistance of counsel due to the alleged failure of his original assigned defense counsel to secure his right to testify before the Grand Jury. Notably, the failure to make a timely motion to dismiss the indictment is deemed a waiver of a defendant's right to testify before the Grand Jury (see, CPL 190.50[5][c];  People v. Gonzales, 168 A.D.2d 743, 564 N.Y.S.2d 210, lv. denied 77 N.Y.2d 906, 569 N.Y.S.2d 938, 572 N.E.2d 621).   While a failure on the part of defense counsel to consult with the defendant could establish that the waiver was not knowingly made (see, People v. McMoore, 203 A.D.2d 612, 614, 609 N.Y.S.2d 964), there is insufficient information in this record to support defendant's assertion that he expressed a desire to testify before the Grand Jury and there is no indication that defendant sought to develop additional facts by way of a postjudgment CPL 440.10 motion (see, People v. Parker, 220 A.D.2d 815, 817, 632 N.Y.S.2d 288, lv. denied 87 N.Y.2d 1023, 644 N.Y.S.2d 156, 666 N.E.2d 1070;  see also, People v. Hammock, 255 A.D.2d 957, 681 N.Y.S.2d 184, lv. denied 93 N.Y.2d 899, 689 N.Y.S.2d 711, 711 N.E.2d 987;  People v. Speed, 226 A.D.2d 1090, 641 N.Y.S.2d 937, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355;  cf., People v. McMoore, supra ).

 In any event, were we to assume that defendant did communicate such a request to his attorney and was rebuffed, “the failure to move to dismiss an indictment for failure to afford a defendant the opportunity to testify before a Grand Jury, standing alone, is insufficient to demonstrate that a defendant was denied meaningful representation” (People v. Hoppe, 244 A.D.2d 764, 765, 666 N.Y.S.2d 518, lv. denied 91 N.Y.2d 973, 672 N.Y.S.2d 853, 695 N.E.2d 722;  see, People v. Mateo, 252 A.D.2d 821, 677 N.Y.S.2d 187;  People v. Barrett, 246 A.D.2d 848, 849, 668 N.Y.S.2d 80).   Instead, to prevail on a claim of ineffective assistance of counsel when there is a failure to comply with a defendant's request to testify before the Grand Jury, the defendant must establish that there were no strategic or other legitimate explanations for counsel's failure to pursue this course of action (see, People v. Brown, 227 A.D.2d 691, 693, 641 N.Y.S.2d 763, lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 387, 672 N.E.2d 613;  see also, People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902;  People v. Brown, 232 A.D.2d 750, 752, 649 N.Y.S.2d 51).   Since defendant's claims in this regard are based upon conclusory allegations which lack support in the record, we affirm (see, People v. Sturgis, 199 A.D.2d 549, 550, 606 N.Y.S.2d 241, lvs. denied 83 N.Y.2d 858, 612 N.Y.S.2d 391, 634 N.E.2d 992, 84 N.Y.2d 833, 617 N.Y.S.2d 153, 641 N.E.2d 174;  see also, People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Santiago, 216 A.D.2d 175, 628 N.Y.S.2d 483;  People v. Richardson, 193 A.D.2d 969, 970, 598 N.Y.S.2d 341).   Moreover, defendant has not demonstrated that counsel's failure to request suppression hearings deprived him of effective assistance of counsel (see, People v. Dragoon, 256 A.D.2d 653, 681 N.Y.S.2d 807, lv. denied 92 N.Y.2d 1048, 685 N.Y.S.2d 426, 708 N.E.2d 183) and, indeed, a Huntley hearing was conducted and no prejudice has been shown.   Defendant's remaining arguments have been examined and also found to be unpersuasive.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., CREW III, GRAFFEO and MUGGLIN, JJ., concur.

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