        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

31
KA 09-01204
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELLIOTT I. JAMES, ALSO KNOWN AS PIG,
DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered April 21, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Cattaraugus County Court for the filing of a predicate felony
statement and resentencing in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him, upon a
jury verdict, of criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]). Defendant’s general motion for
a trial order of dismissal failed to preserve for our review his
contention that the conviction is not supported by legally sufficient
evidence (see People v Hawkins, 11 NY3d 484, 492; People v Gray, 86
NY2d 10, 19) and, in any event, defendant failed to renew that motion
after presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678; People v Drennan, 81 AD3d 1279, 1280, lv denied 16
NY3d 858, 17 NY3d 816). Viewing the evidence in light of the elements
of the crime as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     We also reject the contention of defendant that he was denied
effective assistance of counsel based on the failure of defense
counsel to assert defendant’s right to testify before the grand jury.
Such failure “does not, per se, amount to a denial of effective
assistance of counsel under the circumstance of this case” (People v
Wiggins, 89 NY2d 872, 873; see People v Simmons, 10 NY3d 946, 949).
Defendant has not established that “he was prejudiced by the failure
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                                                         KA 09-01204

of [defense counsel] to effectuate his appearance before the grand
jury” or that, “had he testified in the grand jury, the outcome would
have been different” (Simmons, 10 NY3d at 949). To the extent that
defendant contends he was denied effective assistance of counsel when
defense counsel allegedly took a position that was adverse to
defendant, that contention is based upon matters outside the record on
appeal and thus must be raised by way of motion pursuant to CPL
article 440 (see People v Johnson, 81 AD3d 1428, lv denied 16 NY3d
896).

     We agree with defendant, however, that his waiver of a new
presentence report was invalid pursuant to CPL 390.20 (4) (a) and that
the People erred in failing to file a predicate felony statement.
Where, as here, “an indeterminate or determinate sentence of
imprisonment [was] to be imposed,” a waiver of the presentence report
was not authorized (CPL 390.20 [4] [a]; see People v Shapard, 59 AD3d
1054). We further conclude that the People’s failure to file a
predicate felony statement is not harmless (cf. People v Bouyea, 64
NY2d 1140, 1142).

     In addition, defendant’s sentence is illegal insofar as the
period of postrelease supervision exceeds three years (see Penal Law §
70.45 [2] [d]; § 70.70 [3] [b]). We therefore modify the judgment by
vacating the sentence, and we remit the matter to County Court for the
filing of a predicate felony statement and resentencing after
preparation of a presentence report.

     In light of our determination, we do not reach defendant’s
remaining contention.




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
