| People v MacLean |
| 2008 NY Slip Op 01188 [48 AD3d 1215] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GlenMacLean, Appellant. |
—[*1] Glen MacLean, defendant-appellant pro se. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedOctober 24, 2006. The judgment convicted defendant upon a jury verdict of, inter alia, recklessendangerment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment of Livingston County Court convictinghim upon a jury verdict of, inter alia, reckless endangerment in the first degree (Penal Law§ 120.25) arising from a high-speed chase that began in Monroe County and ended inLivingston County. We reject the contention of defendant that he was deprived of a fair trialwhen the court allowed the People to elicit evidence concerning uncharged crimes without firstobtaining a Ventimiglia ruling. The court has discretion to admit evidence despite thefailure of the People to provide advance notice of their intent to present such evidence (seePeople v McLeod, 279 AD2d 372 [2001], lv denied 96 NY2d 921 [2001]; see generally People v Robinson, 28AD3d 1126, 1128 [2006], lv denied 7 NY3d 794 [2006]), particularly where thedefendant was aware of the evidence (see Robinson, 28 AD3d at 1128; People vHimko, 239 AD2d 661, 662 [1997], lv denied 90 NY2d 906 [1997]). Also contraryto defendant's contention, the court properly allowed the People to present testimony with respectto those portions of the chase that occurred in Monroe County because that conduct was"inextricably interwoven with the crime charged," and its probative value outweighed thepossible prejudice to defendant (People v Vails, 43 NY2d 364, 368 [1977]; see People v Garing, 37 AD3d849, 850 [2007], lv denied 8 NY3d 946 [2007]; see also People v Gines, 36NY2d 932, 933-934 [1975]; People v Miller, 286 AD2d 981, 982 [2001], lvdenied 97 NY2d 657 [2001]).
Defendant failed to preserve for our review his contention that he was deprived of a fairtrial by prosecutorial misconduct based on the People's opening and closing statements (seeCPL 470.05 [2]), and we decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). We further conclude thatthe evidence is legally sufficient to support the conviction of reckless endangerment in the firstdegree (see People v Rodriguez, 217 AD2d 403 [1995], lv denied 87 NY2d 850[1995]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The record containsuncontroverted evidence that, while [*2]intoxicated, defendantdrove down the middle of roads that were slippery with wet leaves at speeds ranging from 75 to95 miles per hour, disregarded traffic signals, and caused three vehicles to pull off the road inorder to avoid colliding with defendant's vehicle. The fact that "no one was seriously injured orkilled [by defendant's conduct] was purely fortuitous and cannot inure to defendant's benefit"(People v Williams, 158 AD2d 253, 254 [1990], lv denied 75 NY2d 971 [1990]).We reject defendant's contention that the verdict with respect to reckless endangerment is againstthe weight of the evidence (see Bleakley, 69 NY2d at 495). The sentence is not undulyharsh or severe and, contrary to defendant's further contention, the certificate of conviction doesnot contain any errors, and thus it need not be amended (cf. People v Fomby, 42 AD3d 894, 896-897 [2007]; People v Saxton, 32 AD3d 1286[2006]).The remaining contentions of defendant are raised in his pro se supplemental brief, and weconclude that none requires reversal. Defendant contends that the court erred in considering the"pre-plea investigation report" as a basis for its sentencing determination. We conclude thatdefendant failed to preserve that contention for our review (see CPL 470.05 [2]). Whenthe People moved for sentencing based on the "pre-plea investigation report" immediately afterthe jury returned its verdict, defendant discussed the matter with defense counsel and failed toobject to the court's use of that report, instead stating that he would like to proceed withsentencing. In any event, defendant's contention lacks merit inasmuch as the "pre-pleainvestigation report" contains all of the information required in a presentence report (seeCPL 390.30; People v Johnston, 32AD3d 556 [2006]; see also People v Huntsman, 296 AD2d 858 [2002], lvdenied 99 NY2d 536, 615 [2002]).
The challenge by defendant to the court's bail order is not properly before us inasmuch as noappeal lies from a court's securing order (see Preiser, Practice Commentaries,McKinney's Cons Laws of NY, Book 11A, CPL 510.20). The further contentions of defendantconcerning the court's jury charge are unpreserved for our review (see CPL 470.05 [2]),and we decline to exercise our power to review those contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Finally, contrary to the contention ofdefendant, the court properly denied his request for substitution of assigned counsel. Defendantdid not indicate that there was "a serious possibility of good cause for substitution" but, rather,made only vague assertions that defense counsel was not in frequent contact with him and did notaid in his defense (People v Randle [appeal No. 2], 21 AD3d 1341, 1341 [2005], lvdenied 6 NY3d 757 [2005] [internal quotation marks omitted]; see People v Sides,75 NY2d 822, 824 [1990]). Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.