People v. Knox

• Decision Date: 12 November 1987
• Citation: 521 N.Y.S.2d 544,134 A.D.2d 704
• Parties: The PEOPLE of the State of New York, Respondent, v. Sloman KNOX, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 544

521 N.Y.S.2d 544

134 A.D.2d 704

The PEOPLE of the State of New York, Respondent, v. Sloman KNOX, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 12, 1987.

Joseph J. Balok, Jr., Chemung County Public Defender (Kevin Moshier, Elmira, of counsel), for appellant.

James Hayden, Chemung County Dist. Atty., Elmira, for respondent.

Before MAHONEY, P.J., and KANE, WEISS, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered October 18, 1985, upon a verdict convicting defendant of the crime of assault in the second degree.

Defendant's conviction stems from an incident occurring outside McArthur's Bar in the City of Elmira, Chemung County, in which defendant struck Brenda McDowell Jones across the head with a pool cue during an altercation with Jones' brother, Mark McDowell. After the guilty verdict had been rendered, and prior to sentencing, defendant discharged his attorney and made a pro se motion to set aside the verdict pursuant to CPL 330.30(1) based on the alleged inadequate representation of trial counsel. Defendant's claim of ineffective assistance of counsel was based on his attorney's failure to call the owner of the bar, Steven McArthur, as a witness, and also the alleged failure to inform defendant of the potential advantage of a Sandoval motion. County Court adjourned the matter to permit defendant to retain new counsel and a hearing was held on the motion. At the close of the hearing, County Court declined to set aside the verdict and the matter proceeded to sentencing. This appeal ensued.

Initially, we observe that defendant's claim of inadequate representation was based on matters outside the record. Hence, the motion was not properly made pursuant to CPL 330.30(1), which requires that the grounds for setting aside the verdict appear in the record (cf., People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149; People v. Ferreras, 100 A.D.2d 940, 474 N.Y.S.2d 829, appeal dismissed 70 N.Y.2d 630, 518 N.Y.S.2d 780, 512 N.E.2d 301). Although County Court erred in entertaining the motion (which would have been proper as a postjudgment motion pursuant to CPL 440.10[1][f] ), since no objection was made and a hearing has already been held by County Court, we see nothing to be gained by remitting the matter for the proper motion to be made at this time.

Turning to the merits, defendant contends that he was not aware that his prior assault conviction would have been suppressed had his attorney sought a pretrial Sandoval ruling, and that it was apprehension of cross-examination on this conviction which prevented him from taking the stand at trial. However, as County Court noted, defendant had other prior convictions including criminal mischief, reckless endangerment, resisting arrest and burglary which, in all likelihood, would have been admissible for impeachment purposes if defendant had testified. Furthermore, defendant's trial counsel testified that defendant never indicated that he wanted to testify, and that his reluctance was based on his entire criminal record rather than just the assault conviction. Based on the foregoing, we agree with County Court's finding that counsel's failure to pursue a Sandoval ruling reflected defendant's strategic decision not to testify in view of his entire criminal record and did not deprive defendant of effective representation (see, People v. Tommaselli, 102 A.D.2d 943, 944, 477 N.Y.S.2d 798).

We also reject defendant's contention that his counsel's...