People v. DiGabriele

—Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.), rendered May 8, 1997, convicting him of criminal contempt in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that he was denied his statutory right to testify before the Grand Jury. However, having failed to move to dismiss the indictment within five days of his arraignment thereon, the defendant has waived the contention raised herein (see, CPL 190.50 [5] [a]; People v Valle, 198 AD2d 459). The defendant contends that he was denied the effective assistance of counsel. However, if, as here, a last-minute motion for substitution of counsel is made for the purpose of delay, the court can recognize it as such and refuse to make a new appointment. It is well settled that the defense counsel’s failure to effectuate the defendant’s intention to testify before the Grand Jury, standing alone, does not amount to the denial of effective assistance of counsel (see, People v Wiggins, 89 NY2d 872; People v Hook, 246 AD2d 470; People v Sturgis, 199 AD2d 549). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., S. Miller, Thompson and Sullivan, JJ., concur.