People v. Tapp

Order, Supreme Court, New York County (John Cataldo, J.), entered on or about July 24, 2003, which denied defendant’s motion brought pursuant to CPL 440.10 to vacate a judgment, same court and Justice, rendered on or about April 25, 2002, convicting him, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.

Defendant’s claim of ineffective assistance of counsel based on counsel’s allegedly unauthorized withdrawal of defendant’s request to testify before the grand jury was raised in an unsuccessful motion to dismiss the indictment. Since defendant did not appeal from the judgment of conviction, he was not entitled to raise this claim by way of a motion to vacate judgment (see CPL 440.10 [2] [c]). In any event, the claim is without merit, since defendant made no showing that, had he testified, his testimony would have affected the outcome of the proceeding (see People v Mobley, 309 AD2d 605 [2003], lv denied 1 NY3d 599 [2004]). Furthermore, the record establishes that defendant received effective assistance (see People v Ford, 86 NY2d 397, 404 [1995]). We have considered and rejected defendant’s remaining claims. Concur—Nardelli, J.P., Mazzarelli, Saxe, Ellerin and Lerner, JJ.