People v. Dixon

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered August 3, 1998, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, a prison inmate, was indicted on a charge of promoting prison contraband in the first degree based upon his possession of a sharpened metal shank. While represented by assigned counsel, defendant entered a plea of guilty to attempted promoting prison contraband in the first degree, admitted that he had previously been convicted of a felony and was sentenced as a predicate felon to the agreed-upon term of IV2 to 3 years in prison, to be served consecutively with any unsatisfied sentence that he was then serving. Defendant appeals and appellate counsel moves to be relieved of his assignment on the ground that there are no nonfrivolous issues to be raised on appeal.

Based upon our independent review of the record, and considering defendant’s pro se brief, we agree with defense counsel that there are no nonfrivolous issues. Contrary to *902defendant’s claim, the record demonstrates that his guilty plea was knowing and voluntary and that he received effective assistance of counsel, which permitted defendant to plead to a reduced charge. Defendant’s claim that he was denied the right to testify before the Grand Jury was waived by his guilty plea, and the failure to move to dismiss the indictment on that ground is, in and of itself, insufficient to establish ineffective assistance of counsel (see, People v Hoppe, 244 AD2d 764, lv denied 91 NY2d 973). There being no nonfrivolous issues, the judgment is affirmed and defense counsel’s application for leave to withdraw is granted (see, People v Cruwys, 113 AD2d 979, lv denied 67 NY2d 650).

Cardona, P. J., Mikoll, Peters and Mugglin, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted.