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

The PEOPLE of the State of New York, Respondent, v. Guy WEATHERSPOON, Appellant.

Decided: July 21, 2011

Before:  SPAIN, J.P., KAVANAGH, STEIN, GARRY and EGAN JR., JJ. Kindlon Shanks & Associates, Albany (Gennaro D. Calabrese of counsel), for appellant. Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Appeals (1) from a judgment of the County Court of Greene County (Lalor, J.), rendered November 25, 2008, upon a verdict convicting defendant of the crime of assault in the second degree, and (2) by permission, from an order of said court, entered August 5, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In August 2006, while an inmate at Coxsackie Correctional Facility in Greene County, defendant was accused of punching a correction officer.   Shortly thereafter, the Department of Correctional Services completed an investigation into the incident and, less than nine months later, defendant was indicted on two counts of assault in the second degree.   Following a jury trial, defendant was acquitted of the first count (see Penal Law § 120.05[3] ), but convicted of the remaining count (see Penal Law § 120.05[7] ).   Thereafter, defendant was sentenced to a prison term of seven years to be served consecutively to the sentence he was already serving, plus five years of postrelease supervision.   County Court denied—without a hearing—defendant's subsequent motion to vacate the judgment of conviction pursuant to CPL 440.10.   Defendant now appeals from the judgment of conviction and, by permission, from the order denying his motion to vacate.

 Defendant initially contends that the preindictment delay deprived him of due process.   However, applying the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975], we find that the instant preindictment delay was not so unreasonable as to result in a due process violation.   Although the People have not explained the delay, a nine-month gap between the commission of an offense and the resulting indictment is “comparatively brief” (People v. Allah, 264 A.D.2d 902, 903, 696 N.Y.S.2d 92 [1999] ), and similar periods of delay have repeatedly been found to be within constitutional parameters (see e.g. People v. Striplin, 48 A.D.3d 878, 851 N.Y.S.2d 685 [2008], lv. denied 10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] [9 1/212-month delay];  People v. Coggins, 308 A.D.2d 635, 764 N.Y.S.2d 364 [2003] [9 1/212-month delay];  People v. Hernandez, 306 A.D.2d 751, 760 N.Y.S.2d 910 [2003] [nine-month delay];  People v. Irvis, 301 A.D.2d 782, 754 N.Y.S.2d 693 [2003], lv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 119, 790 N.E.2d 293 [2003] [10–month delay];  People v. Allah, 264 A.D.2d 902, 696 N.Y.S.2d 92 [1999] [nine-month delay] ).   Given that defendant was already imprisoned for a prior felony conviction, his liberty interest was not impacted (see People v. Striplin, 48 A.D.3d at 879, 851 N.Y.S.2d 685;  People v. McCormick, 17 A.D.3d 785, 786, 792 N.Y.S.2d 724 [2005];  People v. Andrade, 301 A.D.2d 797, 798, 755 N.Y.S.2d 107 [2003] ), and he has failed to demonstrate that his defense was impaired by the delay (see People v. Vernace, 96 N.Y.2d 886, 888, 730 N.Y.S.2d 778, 756 N.E.2d 66 [2001];  People v. Richardson, 298 A.D.2d 711, 712, 749 N.Y.S.2d 110 [2002] ).   Considering the foregoing, along with the serious nature of the charged crimes, we find that defendant's due process rights were not violated by the preindictment delay.

 Defendant's related contention that he was denied the effective assistance of counsel due in part to counsel's alleged insufficient support of defendant's pro se pretrial motion to dismiss based upon the preindictment delay is also unavailing.   In assessing a claim of ineffective assistance, “ ‘[o]ur focus is on the fairness of the proceedings as a whole’ ” (People v. Mosby, 78 A.D.3d 1371, 1373, 911 N.Y.S.2d 493 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011], quoting People v. Stultz, 2 N.Y.3d 277, 284, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ).   To prevail, a “defendant must demonstrate that his [or her] attorney failed to provide meaningful representation” and “ ‘the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  see People v. Evans, 81 A.D.3d 1040, 1041, 916 N.Y.S.2d 302 [2011] ).   Here, defendant's assertion that counsel should have more vigorously supported his preindictment delay motion cannot serve as a basis for a claim of ineffective assistance, as ineffective assistance does not result from counsel's failure to “make [or more enthusiastically support] a motion or argument that has little or no chance of success” (People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [internal quotation marks and citation omitted];  see People v. Campbell, 17 A.D.3d 925, 926, 793 N.Y.S.2d 647 [2005], lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264 [2005] ).

 Similarly meritless is defendant's contention that he was denied meaningful representation as a result of counsel's erroneous advice to accept a plea bargain that included a sentence recommendation by the People that could not be legally imposed.   Defendant initially pleaded guilty to both counts of the indictment—two class D violent felonies—in exchange for a recommended prison sentence of 2 to 4 years, which he was later permitted to withdraw after it was discovered that the recommended sentence would be illegal given his status as a second felony offender.   Following further negotiations, defendant refused a new offer to plead guilty to a single count of attempted assault in the second degree—a class E nonviolent felony—in exchange for the same sentence recommendation of 2 to 4 years consecutive to the sentence he was already serving.   Although counsel's initial advice was erroneous, the error was corrected, and it ultimately led to the negotiation of an even more favorable offer.   Therefore, it cannot be said that counsel was ineffective in this regard (see People v. Gregory, 290 A.D.2d 810, 812, 736 N.Y.S.2d 512 [2002], lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 465, 774 N.E.2d 230 [2002];  see also People v. Jackson, 30 A.D.3d 824, 825, 817 N.Y.S.2d 731 [2006] ).

 Finally, although defendant raises numerous complaints with regard to counsel's preparation and performance at trial and sentencing, we do not find those aspects of the representation to have been ineffective.   While counsel provided only a brief opening statement and called no witnesses to testify, defendant has failed to demonstrate the absence of a strategy or other legitimate explanation for counsel's approach.   Defendant does not claim that he communicated a desire to testify, nor has he identified any additional witness who should have been called.   Indeed, counsel extensively cross-examined the People's witnesses, made relevant objections throughout the trial, was active in the jury charge conference and delivered a cogent closing argument.   Moreover, defendant was acquitted of the first count of the indictment (see People v. Elwood, 80 A.D.3d 988, 990, 915 N.Y.S.2d 694 [2011], lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011];  People v. Battease, 74 A.D.3d 1571, 1575, 904 N.Y.S.2d 241 [2010], lv. denied 15 N.Y.3d 849, 909 N.Y.S.2d 26, 935 N.E.2d 818 [2010];  People v. Hutchinson, 57 A.D.3d 1013, 1014, 868 N.Y.S.2d 807 [2008], lv. denied 12 N.Y.3d 817, 881 N.Y.S.2d 25, 908 N.E.2d 933 [2009] ).   Even if counsel's representation was less than perfect, considering “the evidence, the law, and the circumstances of [the] case, viewed in totality and as of the time of the representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  see People v. Battease, 74 A.D.3d at 1575, 904 N.Y.S.2d 241), we conclude that defendant received meaningful representation.

We have considered defendant's remaining arguments and find them unavailing.

ORDERED that the judgment and order are affirmed.



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