10 N.Y.3d 946 (2008)
Failure of defense counsel to facilitate a defendant’s testimony before the grand jury does not, per se, amount to a denial of effective assistance of counsel, and the defendant must demonstrate prejudice to succeed on such a claim.
Summary
Donnie Simmons appealed his conviction for criminal possession of a controlled substance, arguing he was constructively without counsel when the case was presented to the grand jury, denying him the right to testify. The Court of Appeals affirmed, holding that the attorney’s failure to secure Simmons’ grand jury appearance didn’t automatically constitute ineffective assistance. Simmons needed to demonstrate prejudice, which he failed to do. The court found the attorney’s actions, while perhaps negligent, did not amount to abandonment and that Simmons did not show the outcome would have differed had he testified.
Facts
Simmons was arrested for drug possession based on police observations. Initially charged with a misdemeanor, he rejected a plea deal. The prosecution then indicated intent to seek an indictment. Simmons’ attorney notified the prosecution of Simmons’ desire to testify before the grand jury. Neither Simmons, who was incarcerated, nor his attorney appeared, and Simmons was indicted on felony charges. Simmons filed a pro se motion to dismiss the indictment claiming his right to testify was violated. His attorney then sought to be relieved, and new counsel was appointed.
Procedural History
Simmons was convicted after a jury trial. He appealed to the Appellate Division, which rejected his claim of constructive abandonment by counsel. He then appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order, upholding Simmons’ conviction.
Issue(s)
Whether an attorney’s failure to ensure a defendant’s appearance before the grand jury, after the defendant expressed a desire to testify, constitutes constructive abandonment of counsel or ineffective assistance of counsel, requiring dismissal of the indictment.
Holding
No, because the attorney’s failure to secure the defendant’s grand jury testimony does not automatically amount to ineffective assistance of counsel; the defendant must demonstrate prejudice resulting from the failure.
Court’s Reasoning
The Court of Appeals relied on People v. Wiggins, which held that counsel’s failure to facilitate a defendant’s grand jury testimony does not per se constitute ineffective assistance. The Court emphasized that Simmons failed to demonstrate prejudice. He offered no evidence to suggest that his testimony would have altered the grand jury’s decision to indict. The Court noted that the attorney appeared at court proceedings and advocated on behalf of his client, indicating representation, not abandonment. While the attorney wasn’t on the felony panel, he was a licensed attorney qualified to represent the defendant. The Court emphasized that a viable claim of ineffective assistance of counsel for failure to secure defendant’s presence at the grand jury is by itself insufficient in the absence of prejudice. The court found that without showing a different outcome would have occurred had Simmons testified before the Grand Jury the motion to dismiss the indictment was properly denied.