Opinion
2012-02-10
The PEOPLE of the State of New York, Respondent, v. Elliott I. JAMES, also known as Pig, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). Defendant's general motion for a trial order of dismissal failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, defendant failed to renew that motion after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396; People v. Drennan, 81 A.D.3d 1279, 1280, 916 N.Y.S.2d 443, lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199, 17 N.Y.3d 816, 929 N.Y.S.2d 804, 954 N.E.2d 95). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We also reject the contention of defendant that he was denied effective assistance of counsel based on the failure of defense counsel to assert defendant's right to testify before the grand jury. Such failure “does not, per se, amount to a denial of effective assistance of counsel under the circumstance of this case” ( People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845; see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130). Defendant has not established that “he was prejudiced by the failure of [defense counsel] to effectuate his appearance before the grand jury” or that, “had he testified in the grand jury, the outcome would have been different” ( Simmons, 10 N.Y.3d at 949, 862 N.Y.S.2d 852, 893 N.E.2d 130). To the extent that defendant contends he was denied effective assistance of counsel when defense counsel allegedly took a position that was adverse to defendant, that contention is based upon matters outside the record on appeal and thus must be raised by way of motion pursuant to CPL article 440 ( see People v. Johnson, 81 A.D.3d 1428, 917 N.Y.S.2d 487, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979).
We agree with defendant, however, that his waiver of a new presentence report was invalid pursuant to CPL 390.20(4)(a) and that the People erred in failing to file a predicate felony statement. Where, as here, “an indeterminate or determinate sentence of imprisonment [was] to be imposed,” a waiver of the presentence report was not authorized (CPL 390.20[4][a]; see People v. Shapard, 59 A.D.3d 1054, 872 N.Y.S.2d 796). We further conclude that the People's failure to file a predicate felony statement is not harmless ( cf. People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338).
In addition, defendant's sentence is illegal insofar as the period of postrelease supervision exceeds three years ( see Penal Law § 70.45[2][d]; § 70.70[3][b] ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for the filing of a predicate felony statement and resentencing after preparation of a presentence report.
In light of our determination, we do not reach defendant's remaining contention.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Cattaraugus County Court for the filing of a predicate felony statement and resentencing.