People v Ramirez

People v Ramirez 2007 NY Slip Op 09678 [46 AD3d 290] December 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Raymond Ramirez, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Gayle Pollack of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jessica Carmela Darpino of counsel), for respondent.

Judgment, Supreme Court, Bronx County (William I. Mogulescu, J., on dismissal motion; Seth L. Marvin, J., at jury trial and sentence), rendered June 22, 2005, convicting defendant of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 15 years, respectively, and order, same court (Seth L. Marvin, J.), entered on or about August 2, 2006, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The People were not required to obtain the court's permission to re-present defendant's case to a second grand jury, because the fact that there were insufficient votes at the first grand jury presentation for either a true bill or a dismissal was not the equivalent of a dismissal (People v Morrison, 34 AD3d 398 [2006], lv denied 8 NY3d 948 [2007]). In any event, the People did seek such permission, which the court properly granted on the basis of the first grand jury's failure to agree (see People v Pryor, 5 AD3d 222, 223 [2004], lv denied 3 NY3d 661 [2004]).

There is no merit to defendant's claim that his attorney provided ineffective assistance in connection with the motion to dismiss the indictment as defective.

We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.