People v. Hook

Jan 27, 1998
Versions:246 A.D.2d 470
668 N.Y.S.2d 183
1998 N.Y. App. Div. LEXIS 628

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered March 11, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 3 to 9 years, unanimously affirmed.

Considering the totality of the circumstances, defendant’s allegations that trial counsel failed to effectuate his right to testify before the Grand Jury and failed to make a timely and complete dismissal motion pursuant to CPL 190.50 (5) (c) would not constitute ineffective assistance of counsel (see, People v Wiggins, 89 NY2d 872, 873; People v Helm, 51 NY2d 853, 854-*471855; People v Lasher, 199 AD2d 595, lv denied 83 NY2d 855). Moreover, defendant has not demonstrated that the result of the Grand Jury proceeding would have been different had defendant testified (see, People v Cipolla, 171 AD2d 557, 558, lv denied 78 NY2d 921). In any event, the record demonstrates that defendant’s inability to testify was not due to counsel’s failure to appear but rather defendant’s own conduct.

The undercover officer’s Hinton hearing testimony that she had conducted previous drug purchases in the very area where defendant had been arrested and that she would return to that location the next month, as well as the fact that threats had been made on her life and she made an effort to disguise herself, warranted closure of the courtroom during that undercover officer’s testimony (see, People v Ayala, 90 NY2d 490, cert denied — US —, 118 S Ct 574; People v Martinez, 82 NY2d 436, 443; People v Mensah, 226 AD2d 161, lv denied 88 NY2d 989). Concur—Sullivan, J. P., Ellerin, Tom and Andrias, JJ.