People v. Scudds

• Decision Date: 21 May 2009
• Docket Number: 101850.
• Citation: 879 N.Y.S.2d 257,2009 NY Slip Op 03966,62 A.D.3d 1165
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NOEL SCUDDS, Appellant.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 1165

879 N.Y.S.2d 257

2009 NY Slip Op 03966

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NOEL SCUDDS, Appellant.

101850.

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

Decided May 21, 2009.

Appeal, by permission, from an order of the County Court of Rensselaer County (Jacon, J.), entered May 21, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a forged instrument in the second degree, without a hearing.

LAHTINEN, J.

Defendant pleaded guilty to criminal possession of a forged instrument in the second degree in satisfaction of an eight-count indictment. As part of the bargained-for plea, defendant was to receive a prison sentence of 2 to 4 years, which was to run concurrently with a two-year determinate sentence imposed in Saratoga County on an unrelated charge, and he was to waive his right to appeal and make restitution in the amount of $30,000. At sentencing, 47 days after he entered his plea of guilty, defendant complained that he had been denied an opportunity to testify before the grand jury. After a brief discussion, County Court granted the oral motion of defendant's retained counsel for reassignment of counsel to pursue a postjudgment motion based on defendant's claim that he had been denied his statutory right to testify before the grand jury, and then proceeded to impose the agreed-upon sentence and defendant executed a written waiver of appeal.

A motion by defendant's newly assigned counsel pursuant to CPL 440.10 (1) (h) followed, demanding, among other things, that defendant's judgment of conviction be vacated because defendant had been denied his constitutionally protected right to the effective assistance of counsel. County Court denied the motion without a hearing, and permission to appeal from that order was granted by order of this Court (see CPL 460.15).

The limited issue we are to decide in this appeal distills to whether defense counsel's failure to secure defendant's appearance before the grand jury and his failure to timely move to dismiss the indictment on the ground that defendant was not afforded his statutory right to testify before the grand jury (see CPL 190.50 [5] [c]) amounted to a denial of defendant's constitutional right to the effective assistance of counsel. Under the circumstances of this case, we think not. The record clearly shows that counsel provided defendant with meaningful...