People v. Dixon — 19 A.D.3d 131

Majority

p. 131

The People of the State of New York, Respondent, v Echo Dixon, Appellant.

[795 NYS2d 587]

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered February 11, 2003, convicting defendant, after a jury trial, of arson in the second degree (two counts) and arson in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s evaluation of expert testimony. Contrary to defendant’s argument, the evidence established that defendant damaged his prison cell by setting a fire (see People v Jackson, 265 AD2d 343 [1999], lv denied 94 NY2d 824 [1999]).

The court’s response to a note from the deliberating jury was meaningful and appropriately conveyed the applicable legal principles (see People v Almodovar, 62 NY2d 126 , 131 [1984]). The court reasonably concluded that the jury was seeking a simplified explanation of the elements of the charged crimes and the court’s response provided the jury with the guidance it was seeking (see People v Williams, 297 AD2d 565 , 566 [2002], lv denied 99 NY2d 566 [2002]).

Defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708 , 713-714 [1998]; see also Strickland v

p. 132

Washington, 466 US 668 [1984]). The failure of defendant’s original attorney to file a timely motion to dismiss the indictment pursuant to CPL 190.50 (5) (c), standing alone, did not constitute ineffective assistance (see People v Hook, 246 AD2d 470 [1998], lv denied 92 NY2d 853 [1998]). There is no indication that had defendant been afforded an opportunity to testify before the grand jury, the outcome of the proceedings would have been affected (see People v Harrison, 304 AD2d 376 , 377 [2003], lv denied 100 NY2d 621 [2003]; People v Williams, 291 AD2d 347 [2002], lv denied 98 NY2d 682 [2002]). Concur - Saxe, J.P., Sullivan, Nardelli and Williams, JJ.

Cases cited

People v. Almodovar 62 NY2d 126 N.Y. 1984-05-15 at 131 p. 131
Alomari v. Pietruszka 99 NY2d 566 N.Y. 2003-01-09 p. 131
People v. Benevento 91 NY2d 708 N.Y. 1998-06-11 at 713-714 p. 131
Strickland v. Washington 466 US 668 SCOTUS 1984-05-14 p. 132
People v. Hook 246 AD2d 470 N.Y. App. Div. 1998-01-27 p. 132
People v. Harrison 304 AD2d 376 N.Y. App. Div. 2003-04-10 at 377 p. 132
People v. Williams 291 AD2d 347 N.Y. App. Div. 2002-02-28 p. 132