People v. James

• Decision Date: 05 April 1993
• Citation: 596 N.Y.S.2d 100,192 A.D.2d 555
• Parties: The PEOPLE, etc., Respondent, v. William JAMES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 100

596 N.Y.S.2d 100

192 A.D.2d 555

The PEOPLE, etc., Respondent, v. William JAMES, Appellant.

Supreme Court, Appellate Division Second Department.

April 5, 1993.

Philip L. Weinstein, New York City (Kevin Casey of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Robin A. Forshaw, Lynne E. Troy, and Brian Gardner, of counsel), for respondent.

Before MILLER, J.P., and RITTER, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 7, 1990, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence of an indeterminate term of 20 years to life imprisonment for murder in the second degree, to run concurrently to a definite term of one year for criminal possession of a weapon in the fourth degree.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice by reducing the sentence for murder in the second degree to 15 years to life imprisonment; as so modified, the judgment is affirmed.

We agree with the defendant that under the circumstances of this case, his plea of guilty does not preclude our review of his claim that he was denied his right to testify before the Grand Jury, because that claim is based upon an assertion that he was deprived of the effective assistance of counsel (see, People v. Johnston, 178 A.D.2d 550, 577 N.Y.S.2d 644; People v. Stevens, 151 A.D.2d 704, 542 N.Y.S.2d 754). However, we conclude that Supreme Court properly denied his motion to dismiss the indictment. Even assuming that he was ineffectively represented at the time of his arraignment on the indictment on January 30, 1989, the defendant did not move to dismiss until April 11, 1990. In April 1990, he was represented by another attorney who had served as trial counsel since at least October 1989, and trial counsel's competence is not questioned. The motion to dismiss the indictment was untimely and was properly denied by the Supreme Court (see, CPL 190.50[5][c]; People v. Johnston, supra; People v. Morales, 163 A.D.2d 332, 557 N.Y.S.2d 454).

The defendant's motion to withdraw his plea of guilty was also properly denied. Although we again disagree with the People that appellate review has been forfeited (see, People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5) we conclude that the claims advanced by the defendant are without merit. All stem from a psychiatric report prepared for the court's review prior to sentencing. The defendant claims that this report casts doubt upon his mental state at the time of the plea because it revealed a psychiatric history and his use of medication. However, the examining doctor pronounced him fit for sentencing and a review of the plea minutes reveals that the defendant understood the proceedings and was...