People v. Cipolla

Judgment, Supreme Court, New York County (Herbert Bell, J. at hearing; Jerome Hornblass, J. at jury trial and sentence), rendered on or about February 19, 1988, convicting defendant of criminal possession of a weapon in the fourth degree and sentencing her to three years’ probation, unanimously affirmed.

Defendant did not meet her burden of establishing that assigned counsel failed to inform her of her right to testify before the grand jury. In support of her motion pursuant to CPL 190.50, defendant submitted the affirmations of two attorneys whom she subsequently retained. Neither had personal knowledge as to whether assigned counsel properly advised defendant. In partióular, while one of these attorneys stated that former assigned counsel told him in a telephone conversation that he never visited defendant in jail, it is possible that assigned counsel notified defendant of her right to testify at some other time, such as at arraignment. In any event, defendant has not shown that, but for the alleged error by assigned counsel, the result of the proceeding would have been different (Strickland v Washington, 466 US 668).

Insofar as defendant argues she was denied effective assistance of counsel because her retained counsel failed to file a timely motion pursuant to CPL 190.50, it appears from the record, as submitted, albeit incomplete, that defendant’s motion was denied on the merits and not on the grounds of untimeliness, and that defendant suffered no prejudice for the alleged incompetence. Concur — Milonas, J. P., Kupferman, Asch, Kassal and Smith, JJ.