People v. March

Appeal from a judgment of the Supreme Court, Oneida County (Michael E. Daley, J.), rendered August 27, 2003. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]). Although the contention of defendant that he was denied effective assistance of counsel as a result of his first attorney’s failure to notify the People that he wished to testify before the grand jury depends on facts outside the record and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v Bryant, 1 AD3d 966 [2003]; People v Nicholson, 269 AD2d 868 , 869 [2000], lv denied 95 NY2d 907 [2000]; People v Parker, 220 AD2d 815 , 817 [1995], lv denied 87 NY2d 1023 [1996]), we nevertheless conclude that defendant’s contention would not require reversal in any event. Even assuming, arguendo, that defendant’s contention survives the guilty plea (see Bryant, 1 AD3d at 966 ), we conclude that “defense counsel’s failure to notify the People that defendant wished to testify before the grand jury does not, by itself, amount to ineffective assistance of counsel” (People v Dennis,