Calendar Date: September 5, 2013
Jon Kosich, Greenville, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: Rose, J.P., Lahtinen, Spain and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered December 19, 2011, upon a verdict convicting defendant of the crime of burglary in the second degree.
Defendant was caught entering the second story window of a home and charged in local criminal court with two counts of burglary in the second degree on September 2, 2010. On January 10, 2011, he waived indictment in County Court and agreed to be prosecuted by superior court information charging him with burglary in the third degree. The People filed a statement of readiness on that same date. Thereafter, the People obtained an indictment charging defendant with burglary in the second degree based upon the same facts alleged in the original charges, and they again declared their readiness at defendant's arraignment on the indictment on September 19, 2011. After a jury trial, defendant was convicted as charged.
On appeal, defendant contends that his speedy trial rights were violated because, he asserts, the indictment vitiated the original statement of readiness, and the September 2011 statement of readiness was beyond the six-month time limit as measured from the commencement of the action in September 2010. He waived this claim, however, by failing to move to dismiss the indictment prior to the commencement of trial (see CPL 210.20 ; People v Lawrence, 64 N.Y.2d 200, 203-204 ; People v Garcia, 33 A.D.3d 1050, 1051 , lv denied 9 N.Y.3d 844 ). In any event, the claim is without merit as the indictment is "directly derived" from the original accusatory instrument (CPL 1.20 ). Thus, it not only relates back to the commencement of the action, but also to the initial announcement of readiness (see People v Farkas, 16 N.Y.3d 190, 193 ; People v Sinistaj, 67 N.Y.2d 236, 239 ; People v Bjork, 105 A.D.3d 1258, 1259 , lv denied 21 N.Y.3d 1040 ; People v Galloway, 93 A.D.3d 1069, 1070 , lv denied 19 N.Y.3d 996 ).
We must also reject defendant's argument that the failure to move to dismiss on speedy trial grounds rises to the level of ineffective assistance of counsel, as counsel should not be criticized for failing to pursue a potentially futile endeavor (see People v Caban, 5 N.Y.3d 143, 152 ; People v Bahr, 96 A.D.3d 1165, 1166 , lv denied 19 N.Y.3d 1024 ; People v Perea, 27 A.D.3d 960, 961 ). Nor are we persuaded by defendant's remaining claims of ineffective assistance. Simply stated, counsel's representation was meaningful and defendant has not demonstrated the absence of any strategic or other legitimate explanations for the alleged failings (see People v Harvey, 96 A.D.3d 1098, 1100 , lv denied 20 N.Y.3d 933 ; People v Wicks, 73 A.D.3d 1233, 1236 , lv denied 15 N.Y.3d 857 ; People v Cole, 35 A.D.3d 911, 913 , lv denied 8 N.Y.3d 944 ).
Lahtinen, Spain and Garry, JJ., ...