People v. Sain

• Decision Date: 27 November 2013
• Parties: The PEOPLE, etc., respondent, v. Joseph SAIN, appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 964
976 N.Y.S.2d 107
2013 N.Y. Slip Op. 07994

The PEOPLE, etc., respondent,
v.
Joseph SAIN, appellant.

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

Nov. 27, 2013.

Jason M. Bernheimer, Katonah, N.Y. (Melvin H. Bernheimer of counsel), for appellant, and appellant pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered October 21, 2010, convicting him of burglary in the second degree and petit larceny, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress certain identification evidence.

ORDERED that the judgment is affirmed.

[976 N.Y.S.2d 108]

The defendant's contention, also raised in his pro se supplemental brief, that he was deprived of his right to testify before the grand jury, is without merit. Criminal Procedure Law § 190.50(5)(a) provides a defendant with the right to testify before the grand jury “if, prior to the filing of any indictment ... in the matter, he serves upon the district attorney of the county a written notice making such request.” Notwithstanding the defendant's claim that he told his attorney of his desire to testify before the grand jury, there is no evidence in the record that either he or his attorney served the required written notice on the District Attorney ( seeCPL 190.50[5][a] ). Consequently, the defendant's motion to dismiss the indictment on the ground that he was not accorded an opportunity to appear and testify before the grand jury was properly denied ( seeCPL 210.20[1][c]; 210.35[4]; 190.50[5][a]; People v. Griffith, 76 A.D.3d 1102, 908 N.Y.S.2d 123; People v. Rogers, 228 A.D.2d 623, 645 N.Y.S.2d 497). Moreover, even if defense counsel failed to act on the defendant's desire to testify before the grand jury, any failure on the part of counsel to so act would not, under the circumstances of this case, amount to the denial of the effective assistance of counsel ( see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130; People v. Griffith, 76 A.D.3d at 1103, 908 N.Y.S.2d 123; People v. Maier, 77 A.D.3d 681, 908 N.Y.S.2d 711; People v. Brooks, 258 A.D.2d 527, ...