Opinion
April 5, 1985
Appeal from the Oneida County Court, Buckley, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was sentenced as a persistent felony offender after being convicted of attempted rape, first degree; sexual abuse, first degree; and robbery, second degree. He claims that he was denied his right to testify before the Grand Jury. Defendant was originally charged in a felony complaint with robbery, second degree. Following a preliminary hearing at which the victim testified, the matter was held for the Grand Jury. Defendant was thus aware of the Grand Jury proceeding but declined to testify. He now claims that if he had known that the People were going to present proof of the sexual offenses of which he was convicted, he would have testified and that the People's failure to notify him that additional charges would be presented deprived him of his constitutional right to testify. He relies on People v. Suarez ( 103 Misc.2d 910). The situation in Suarez, however, is totally distinguishable. There the defendant was arraigned on a felony complaint charging him with two counts of possession of a weapon and, while the complaint was still pending, an indictment was voted charging him with criminal possession of a dangerous weapon in the second degree, an armed felony, and other charges. Within four days of arraignment on that indictment, he moved to dismiss the indictment on the ground he had not been provided with notice that he was going to be charged with an armed felony offense and thus had not made an informed decision whether to testify before the Grand Jury. Because the felony complaint was still pending in the local criminal court at the time of presentment to the Grand Jury, Suarez was entitled to specific notice under CPL 190.50 (5) (a). Further, he timely moved within the five-day period prescribed for such motion (CPL 190.50 [c]). In contrast, defendant here was held for the Grand Jury after a preliminary hearing and thus the felony complaint was disposed of and defendant was not entitled to notice of the Grand Jury proceedings (CPL 190.50 [a]). Additionally, the discrepancy between the charge in the felony complaint and the charges in the indictment was apparent from the outset and, by not raising the issue at that time, defendant waived the right to challenge the indictment.
Defendant also claims that he was denied the effective assistance of counsel because his trial counsel refused to call witnesses whom the defendant wanted to testify at trial and refused to allow him to testify in his own behalf. At a hearing on defendant's motion to vacate the judgment (CPL 440.10), defendant's trial counsel testified that defendant had wanted him to call three jailhouse companions to testify that the victim had purchased cocaine from one and was buying drugs and having sexual relations with another. Counsel refused to call the witnesses because he learned that their story was a fabrication. He obviously acted properly and consistently with his ethical obligations in not calling those witnesses. Trial counsel also testified that he had advised defendant not to testify in his own behalf because he testified at a suppression hearing and had denied involvement in the crime. That testimony was inconsistent with the defense theory at trial which was that defendant had committed larceny but not the sexual offenses. In addition, trial counsel stated that defendant had an extensive record and he could, therefore, be impeached on the basis of his prior convictions. Counsel stated that defendant understood that he was not going to testify and the reasons that he was not. There is no support for defendant's claim that the decision was made without his consent.
We have considered the many other claims raised by defendant and find them to be similarly lacking in merit.