People v. Helm

OPINION OF THE COURT

Herlihy, J.

At the outset, it should be observed that the guilt of the defendant was proven beyond any reasonable doubt. He was apprehended by the police in the act of committing a burglary and upon this appeal does not raise any issue as to his guilt.

The primary issue raised by the defendant is his contention that his assigned trial counsel was inadequate and as a result he was deprived of his constitutional right to effective representation (cf. People v Droz, 39 NY2d 457). "This complaint, frequently made, is rarely found to have merit.” (People v Droz, supra, p 459.)

The claim of incompetency of counsel is centered on facts and circumstances relating to a superseding indictment issued on August 18, 1977. Counsel was initially assigned on July 18, 1977 and at the subsequent arraignment of the defendant on that day, counsel found that defendant had prepared a pro se motion attacking the indictment dated July 14, 1977. Counsel advised the court of the pro se papers and the motion was made. Thereafter, the defendant, on August 22, 1977, appeared in court with his counsel and, after first attempting to persuade the court to revoke the assignment of this particular counsel, he withdrew his complaint. The particular dissatisfaction expressed by defendant on August 22, 1977 was that no one had advised him of the impending superseding indictment.

Subsequently, the defendant appeared in court on August 26, 1977, again attempting to have his assigned counsel discharged. He asserted that counsel had lied to him as to the sufficiency of the indictment and as to a plea bargain. The court continued the assignment and, on August 31, 1977, the assigned counsel caused the matter to again appear before the court upon his motion by way of an order to show cause seeking to be relieved of the assignment.

As to the latter appearance, it was made apparent to the court that the defendant and his counsel were in disagreement on whether or not the defendant had advised his counsel that in the event of resubmission to a Grand Jury he would *200not seek to appear before it as a witness pursuant to CPL 190.50 (subd 5). Counsel averred that pursuant to his advice, the defendant had agreed that he would not seek to testify before the Grand Jury. Thereafter, the District Attorney advised counsel that the case was being resubmitted on a particular date and the counsel told the District Attorney that the defendant waived his right to appear. The defendant told the court in regard to the disagreement: "Your Honor, in the Show Cause here, in opposition, he stated that I agreed not to appear before the Grand Jury. Now, we did talk about that, but I did not agree to it. I told him I would think about it, because actually I wanted—the whole thing was I wanted to appear before the Grand Jury on my indictment, that’s the whole thing. And he suggested it, and he even said to me, T don’t want you to appear.’ He did say that. But I just said, 'I’ll think it over.’ I didn’t give him a no or a yes.”

The defendant, upon this appeal, objects to the finding that he was a "persistent felon” (cf. Penal Law, § 70.10; CPL 400.20); however, the record contains ample justification for such an abominable appellation. It is established that he was not a novice to the workings of the criminal law and was to some extent skilled in the preparation of legal (motion) papers. Nevertheless, there is nothing in the record to show that after consulting with his counsel and being advised of the likelihood of a resubmission to the Grand Jury, he contacted his counsel to advise him what the result was of his avowed endeavor to "think it over”.

Considering the facts in this case, the defendant having been caught in the act, it is difficult to question defendant’s counsel’s advice that the defendant should not appear before the Grand Jury. At best, it might be gleaned from the record that there was a mutual misunderstanding between the defendant and his counsel, but there is nothing so prejudicial therein as to the rights of this defendant to require a reversal (cf. People v Frisbie, 70 AD2d 1053).

A review of the entire proceeding and all of the complaints as to the effectiveness of counsel demonstrates that in this particular case the defendant seeks here on this appeal by attempting to condemn his own attorney to get a "second bite of the apple”. It would be a travesty of justice to reverse this conviction, have the matter resubmitted to another Grand *201Jury and the respondent put to the time and expense of once again having to convict the defendant.

The defendant’s further contention that different counsel should have been assigned in response to his complaints lacks any record support to establish an abuse of discretion by the trial court. Finally, we find no reversible error in the proceedings which resulted in imposing persistent felony offender treatment.

The judgment should be affirmed.