People v. Fleming

196 A.D.2d 551, 601 N.Y.S.2d 304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 9, 1993
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered November 30, 1990, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Prior to trial, the defendant moved to dismiss the indictment arguing that he had been denied the effective assistance of counsel on the ground that counsel ignored his express desire to testify before the Grand Jury and waived the defendant’s right to so testify without consulting him. In support of this claim, the defendant merely submitted to the trial court an affirmation of his retained counsel, who did not have personal knowledge as to whether defendant’s prior counsel properly consulted with the defendant. Thus, the affirmation was insufficient to meet the defendant’s burden of establishing that his rights pursuant to CPL 190.50 were violated (see, People v Richardson, 193 AD2d 969; People v Cipolla, 171 AD2d 557).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Thompson, J. P., Balletta, Ritter and Pizzuto, JJ., concur.