People v. Plastini

— Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Nastasi, J.), rendered April 1, 1985, convicting him of robbery in the second degree, grand larceny in the third degree and menacing, upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the defendant’s conviction of menacing to three months’ imprisonment. As so modified, the judgment is affirmed. The trial court did not abuse its discretion in striking Mrs. Plastini’s testimony inasmuch as the evidence sought to be introduced was not relevant (see, People v Daly, 98 AD2d 803, 805, affd 64 NY2d 970). The defendant further contends that the Grand Jury proceedings were defective inasmuch as the prosecutor read to [506] the Grand Jury Penal Law § 160.10 (2) (a) rather than Penal Law § 160.10 (2) (b). The defendant’s motion to dismiss the indictment was denied by Justice Colabella. Despite the fact that the prosecutor erred by reading a different paragraph than the one for which the defendant was indicted, this court is precluded from reviewing the pretrial denial of the motion to dismiss the indictment if the judgment of conviction is "based upon legally sufficient trial evidence” (CPL 210.30 [6]). Therefore, as there was sufficient evidence to support the defendant’s conviction as to robbery in the second degree, we may not review Justice Colabella’s decision (CPL 210.30 [6]; cf. People v Dearstyne, 50 AD2d 1029, 1030). The defendant’s claim that he was denied the effective assistance of counsel is without merit inasmuch as the record reflects that trial counsel provided meaningful representation to him (see, People v Baldi, 54 NY2d 137, 146-147; People v Satterfield, 66 NY2d 796). Finally, the trial court, inter alia, sentenced the defendant to a determinate term of six months’ imprisonment on the menacing charge. Since menacing is a class B misdemeanor (see, Penal Law § 120.15), the maximum sentence is three months (see, Penal Law § 70.15 [2]). Therefore, the sentence has been modified to the extent indicated. Niehoff, J. P., Rubin, Fiber and Kunzeman, JJ., concur.