People v. Bryant

Nov 21, 2003
Versions:1 A.D.3d 966
1 A.D.2d 966
767 N.Y.S.2d 336
2003 N.Y. App. Div. LEXIS 12220

Appeal from a judgment of Supreme Court, Monroe County (Cornelius, J.), entered December 8, 1998, convicting defendant upon his plea of guilty of robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [4]) and sentencing him as a second felony offender to a determinate term of incarceration of 10 years. The contention that defendant was denied effective assistance of counsel as a result of his first attorney’s failure to notify the prosecution of defendant’s desire to testify before the grand jury depends on facts outside the record and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v Nicholson, 269 AD2d 868, 869 [2000], lv denied 95 NY2d 907 [2000]; People v Parker, 220 AD2d 815, 817 [1995], lv denied 87 NY2d 1023 [1996]; see also People v Galleria, 264 AD2d 899 [1999], lv denied 94 NY2d 880 [2000]). In any event, even assuming, arguendo, that defendant’s contention survives the guilty plea (but see People v Lewis, 296 AD2d 864 [2002]), we conclude that “defense counsel’s failure to notify the People that defendant wished to testify before the grand jury does not, by itself, amount to ineffective assistance of counsel” (People v Dennis, 295 AD2d 755, 756 [2002], lv denied 99 NY2d 534 [2002]; see People v Wiggins, 89 NY2d 872, 873 [1996]; People v Mejias, 293 AD2d 819, 820 [2002], lv denied 98 NY2d 699 [2002]). There is also no merit to defendant’s contention that the plea was invalid, and the right to effective assistance of *967counsel violated, as a result of counsel’s error in informing defendant that the bargained-for 10-year determinate sentence was the “minimum” possible term of incarceration (see People v Garcia, 92 NY2d 869, 870-871 [1998]; People v Modica, 64 NY2d 828, 829 [1985]; People v Jackson, 278 AD2d 875 [2000], lv denied 96 NY2d 759 [2001]; People v Cave, 278 AD2d 941 [2000], lv denied 96 NY2d 798 [2001]). Present—Green, J.P, Wisner, Hurlbutt, Kehoe and Hayes, JJ.