Summary
This Appellate Division, First Department decision affirms the defendant's conviction for robbery in the third degree following a jury trial. The court addresses the defendant's claim of ineffective assistance of counsel for waiving his right to testify before the grand jury, ruling that the issue is unreviewable on direct appeal absent a CPL 440.10 motion. Alternatively, the court finds that defense counsel provided effective assistance under both state and federal standards, noting no lack of strategic basis or resultant prejudice.
Topics
Practice areas
Questions Presented
- Whether the defendant's claim of ineffective assistance of counsel regarding the waiver of grand jury testimony is reviewable absent a CPL 440.10 motion.
- Assuming reviewability, whether the defendant received effective assistance of counsel under state and federal standards.
Holdings
- The claim is unreviewable in the absence of a CPL 440.10 motion and because the issue is not reflected in the record on direct appeal.
- Defendant received effective assistance of counsel; no prejudice shown.
Factual background
De Los Santos was convicted of robbery in the third degree after a jury trial and sentenced to two to four years as a second felony offender. He claimed his initial attorney waived his right to testify before the grand jury without his consent, alleging ineffective assistance of counsel.
Procedural history
The People convicted De Los Santos of robbery in the third degree and sentenced him to 2–4 years. De Los Santos appealed, asserting ineffective assistance of counsel for waiving his right to testify before the grand jury and challenging the denial of his motion to dismiss the indictment. The Appellate Division affirmed the judgment.