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

978
KA 08-00633
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH H. SMITH, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered December 19, 2007. The judgment convicted defendant,
upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of assault in the second degree (Penal Law § 120.05 [2]),
defendant contends that County Court erred in refusing to charge
assault in the third degree as a lesser included offense. Even
assuming, arguendo, that defendant preserved for our review each of
the grounds that he now advances on appeal in support of his
contention (see People v Feldhousen, 103 AD3d 1114, 1115, lv denied 21
NY3d 912), we conclude that his contention lacks merit. Although
assault in the third degree is a lesser included offense because “it
is theoretically impossible to commit assault in the second degree
under [Penal Law § 120.05 (2)] without at the same time committing
assault in the third degree under [Penal Law § 120.00 (1)]” (People v
Fasano, 107 AD2d 1052, 1052), there is no “ ‘reasonable view of the
evidence . . . that would support a finding that he committed the
lesser offense but not the greater’ ” (People v Stanford, 87 AD3d
1367, 1368, lv denied 18 NY3d 886, quoting People v Glover, 57 NY2d
61, 63; see People v Roseborough, 118 AD3d 1347, 1347).

     Contrary to defendant’s further contention, he was not denied
effective assistance of counsel based on defense counsel’s failure to
facilitate defendant’s testimony before the grand jury. It is well
settled that such failure “does not, per se, amount to the denial of
effective assistance of counsel” (People v Simmons, 10 NY3d 946, 949;
see People v Bibbes, 98 AD3d 1267, 1270, amended on rearg 100 AD3d
1473, lv denied 20 NY3d 931), and defendant has failed to demonstrate
                                 -2-                           978
                                                         KA 08-00633

that defense counsel was ineffective based on that single failure (see
Bibbes, 98 AD3d at 1270). Defendant failed to establish that he was
prejudiced by defense counsel’s failure; he has not demonstrated “what
testimony he would have offered or what evidence he would have sought
to admit that might lead one to conclude that having heard it, the
grand jury would have arrived at a different decision” (People v
Sutton, 43 AD3d 133, 136, affd sub nom. Simmons, 10 NY3d at 947 n 1)
and, notably, he did not testify at trial (see Bibbes, 98 AD3d at
1270; Sutton, 43 AD3d at 136). We conclude on the record before us
that defendant received meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

     Finally, to the extent that defendant alleges that his right to
counsel was violated when he was arraigned on the felony complaint, we
conclude that any “such error was cured upon the return of the
indictment” (People v Winch, 50 AD2d 948, 948). “It is well settled
that the finding of an indictment supersedes any prior proceedings in
a local criminal court” (id.).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
