Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Larry R. C. Stephen, J.), rendered May 29, 2002, after a nonjury trial, convicting him of attempted assault in the third degree and harassment in the third degree, and imposing sentence, and from an order of the same court (Joseph J. Dawson, J.), dated March 24, 2005, which denied his CPL 440.10 motion to vacate the judgment.

PER CURIAM:

Judgment of conviction (Larry R.C. Stephen, J.), rendered April 17, 2002, and order (Joseph J. Dawson, J.), dated March 24, 2005, affirmed.

Defendant's CPL 440.10 motion alleging ineffective assistance of counsel based on trial counsel's failure to make a speedy trial motion was properly denied. The hearing record demonstrates that counsel's decision not to move for dismissal on speedy trial grounds was based on a reasonable belief that such motion, had it been considered, would not have been successful (see People v Rivera, 71 NY2d 705, 709 [1988]). The court's findings of excludability are amply supported by the totality of the hearing evidence, including trial counsel's testimony and the minutes of the calendar calls. Because the chargeable time would not have exceeded the statutory 90-day maximum, trial counsel's failure to make a speedy trial motion did not constitute ineffective assistance of counsel.

Defendant's remaining argument is unpreserved for appellate review and, in any event, lacking in merit.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 2007