This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 87 

The People &c.,

 Respondent,

 v.

Perry C. Griggs,

 Appellant.

Alan Williams, for appellant.

Michael J. Hillery, for respondent.

GARCIA, J.:

We are asked on this appeal chiefly to determine whether

errors made by the prosecution before the Grand Jury require

dismissal of the indictment and whether defense counsel provided

ineffective assistance in failing to timely object to these

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errors. We agree with the Appellate Division in the first

instance that defendant's challenges are not preserved. With

respect to the ineffective assistance claim, we also agree with

the Appellate Division's determination that counsel was not

ineffective. Defendant's remaining contentions regarding the

legal sufficiency of the evidence and the fairness of his trial

are partially unpreserved and otherwise meritless.

Defendant was charged with first degree robbery after he

displayed a firearm during a dispute with a taxi driver and took

$30 from the driver. Defendant testified before the Grand Jury,

where he was represented by counsel and shackled. The victim

also testified. While the Grand Jury was sitting and before

defendant testified, defendant's counsel made a timely request

that the prosecutor arrange for defendant's ex-girlfriend (the

"requested witness"), who was present for the beginning of the

relevant dispute, to testify before the Grand Jury pursuant to

CPL 190.50[6]. The requested witness had provided a sworn

statement to the police on June 28, 2010 stating that she got out

of the taxi at the beginning of the dispute and did not see

anything afterwards. Although the prosecution received the

request, the prosecution did not inform the Grand Jury of

defendant's request and the prosecution incorrectly included that

person's name on the CPL 710.30 notice of witnesses that had

identified defendant. The Grand Jury subsequently returned an

indictment charging defendant with robbery in the first degree. 

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Defendant moved under CPL 210.20 to dismiss the indictment based

upon the legal insufficiency of the evidence presented to the

Grand Jury; that motion was denied in June 2011. 

During a court appearance later that month, defendant's

counsel questioned the adequacy of the cautionary instruction, if

any, that was given regarding defendant's appearance in

restraints and mentioned an issue with the testimony of the

requested witness before the Grand Jury, but said that he and the

prosecutor had agreed to "address that at a later date." Later

in that same proceeding, defendant raised his desire to proceed

pro se, and the court instead appointed new defense counsel with

whom defendant already had a relationship. 

Two months later, at defendant's urging and after a full

voir dire of defendant, the court granted the request to proceed

pro se, relieved new counsel, and appointed that same counsel to

advise defendant for the remainder of the proceedings. A jury

returned a guilty verdict in October 2011 and defendant was

sentenced to a twenty-year term of imprisonment based on his

status as a second violent felony offender. 

The Appellate Division unanimously affirmed the conviction

and sentence, finding a majority of defendant's challenges

unpreserved. The Appellate Division also noted that "[a]lthough

we agree with defendant that he should not have been shackled

when he testified before the grand jury, we conclude that

reversal on that basis is not warranted. As the People correctly

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contend, the prosecutor's cautionary instructions to the grand

jury were sufficient to dispel any potential prejudice to

defendant" (117 AD3d 1523 [4th Dept 2014]). The Appellate

Division also noted that the failure to inform the Grand Jury of

the requested witness, while unpreserved, also had no possibility

of prejudicing defendant because "the witness did not observe the

criminal transaction at issue" (id.). A Judge of this Court

granted leave to appeal (24 NY3d 1120 [2015]) and we affirm. 

On appeal, defendant argues that certain errors before the

Grand Jury require dismissal of the indictment, namely, the fact

that he was shackled; that the prosecution asked certain cross

examination questions that referenced a pending indictment; and

that the prosecution failed to inform the Grand Jury of the

requested witness. None of these arguments are preserved, a fact

which defendant concedes, and--contrary to his assertions on

appeal--none implicate a mode of proceedings error. 

Defendant argues that the preservation rule should be

disregarded with respect to the shackling challenge because the

prosecution inaccurately stated on the record that the Court had

previously denied such a challenge when he sought to move to

dismiss the indictment on that basis. No circumstances excuse

the preservation requirement: defense counsel was present during

the Grand Jury proceeding while defendant was shackled. In any

event, the failure to make an adequate showing on the record of

the need for restraints does not constitute an unwaivable mode of

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proceedings error (see e.g. People v Cooke, 24 NY3d 1196, 1197

[2015]). Accordingly this challenge is unpreserved for this

court's review. 

Defendant made no attempt to preserve his challenge to the

prosecution's questions before the Grand Jury of his awareness of

the potential for increased penalties in an unrelated pending

indictment as a result of his conviction in this matter. Such a

challenge requires preservation (see e.g. People v Bowen, 50 NY2d

915, 917 [1980]). 

Finally, defendant's challenge to the indictment based on

the prosecution's failure to inform the Grand Jury about the

requested witness is unpreserved. Here the record demonstrates

that before defense counsel was relieved, he likely knew of the

fact that the requested witness had not actually testified and

was discussing the matter with the prosecution. Defendant

relieved counsel before he could fully address the issue with the

court, and defendant and his legal advisor, who were aware of and

had every incentive to follow up and seek to preserve an

objection on this basis, did not do so. Moreover, any error

does not rise to the level of a mode of proceedings error. 

Not surprisingly, defendant next attempts to argue that

counsel's failure to preserve these claims constitutes

ineffective assistance of counsel. This argument fails because

defendant received meaningful representation from defense

counsel. A defendant has received effective assistance "[s]o

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long as the evidence, the law, and the circumstances of a

particular case, viewed in totality and as of the time of the

representation, reveal that the attorney provided meaningful

representation" (People v Baldi, 54 NY2d 137, 146-47 [1981]). We

have previously determined that counsel's representation was

effective even where defense counsel failed "to show up at the

designated time to attend upon defendant's opportunity to testify

before the Grand Jury" and arrived at the Grand Jury after an

indictment had been voted (People v Wiggins, 89 NY2d 872, 873-74

[1996]).

Here, defense counsel's decision not to move to dismiss

based on the questioning of defendant before the Grand Jury

regarding a pending indictment was reasonable in light of the

limited nature of the questioning and the remedial instruction

provided. Moreover, defendant's conduct substantially affected

counsel's ability to object and preserve arguments regarding the

remaining issues. Counsel attempted to raise certain errors,

particularly the shackling instruction and the absence of the

requested witness's testimony, with the court and the prosecution

prior to being relieved as counsel upon defendant's request. 

Counsel's ability to ensure all relevant objections were made was

undermined by defendant's requests to proceed pro se. 

Furthermore, defendant and his legal advisor could have sought to

cure any errors counsel made before he was relieved, and failed

to do so (see People v Petgen, 55 NY2d 529, 535 [1982]). For

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these reasons, defense counsel's failure to object to errors in

the Grand Jury proceedings did not rise to the level of

ineffective assistance of counsel. 

Defendant's challenges to the legal sufficiency of the

evidence are partially unpreserved1 and otherwise meritless in

light of the evidence upon which the jury could have based its

decision. Finally, defendant's argument that he was deprived of

a fair trial because of "[a] pattern of severe prosecutorial

misconduct" is unpreserved (People v Rossi, 24 NY3d 968, 970

[2014]). 

 Accordingly, the Appellate Division order should be

affirmed. 

1 Defendant's challenges to the sufficiency of the evidence

that he stole property and consciously displayed a gun are

unpreserved. 

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People v. Perry Griggs 

No. 87 

RIVERA, J.(concurring):

I agree with the majority that the challenges are

unpreserved and on the facts of this case defendant was not

denied effective assistance of counsel. To the extent the

majority would shift blame for counsel's failure to defendant for

seeking to proceed pro se, I disagree that defendant acted in

such an obstructionist manner as to undermine his defense and his

claims regarding his counsel's representation. However,

counsel's inactions do not constitute ineffectiveness warranting

reversal, even for failing to challenge defendant's appearance in

shackles before the Grand Jury. The prosecutor's instructions

concerning the shackling were less than ideal but minimally

sufficient to avoid prejudice to defendant. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore

and Judges Pigott, Abdus-Salaam and Stein concur; Judge Rivera

concurs in a separate concurring opinion. Judge Fahey took no

part.

Decided June 14, 2016

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