| People v Evans |
| 2009 NY Slip Op 01031 [59 AD3d 1127] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jimmie LeeEvans, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedJanuary 12, 2005. The judgment convicted defendant, upon a jury verdict, of, inter alia,aggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and TrafficLaw § 511 [3]) and reckless driving (§ 1212). Defendant presented evidence afterCounty Court denied that part of his motion for a trial order of dismissal with respect to thecount of reckless driving at the close of the People's case and thus failed to preserve for ourreview his challenge to the legal sufficiency of the evidence in support of that conviction (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]).Although the challenge by defendant to the legal sufficiency of the evidence with respect to theconviction of aggravated unlicensed operation of a motor vehicle is preserved for our review (see People v Payne, 3 NY3d 266,273 [2004], rearg denied 3 NY3d 767 [2004]), we conclude that defendant's challenge iswithout merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that the admission of an exhibitcontaining documents prepared by the Department of Motor Vehicles (DMV) violated his rightof confrontation (see People vBolling, 49 AD3d 1330, 1331 [2008]; see generally Crawford v Washington,541 US 36 [2004]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We note that "[t]he fact thatdefendant's trial occurred before the decision of the United States Supreme Court inCrawford . . . has no bearing on the preservation requirement" (People v Rivera, 33 AD3d 450,451 [2006], lv denied 7 NY3d 928 [2006]). We reject defendant's further contention thatthe DMV documents were not admissible as business records, inasmuch as a DMV investigatortestified that the exhibit containing those documents was generated and maintained in the regularcourse of business (see CPLR 4518 [a]). The objection by defendant to the admission ofthat exhibit did not encompass his present contention that some of the documents were notbusiness records [*2]because they were not prepared at the timeof mailing. Thus, that contention is not preserved for our review (see generally People vBalls, 69 NY2d 641 [1986]). In addition, defendant failed to preserve for our review hiscontention that there was an insufficient foundation for the testimony of a New York StateTrooper concerning the speed at which defendant's vehicle was traveling, as demonstrated by aradar instrument, inasmuch as defendant failed to object to that testimony. We decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, "[d]efense counsel's failure to timely facilitatedefendant's intention to testify before the Grand Jury does not, per se, amount to a denial ofeffective assistance of counsel under the circumstance of this case" (People v Wiggins,89 NY2d 872, 873 [1996]). We have considered defendant's remaining contentions and concludethat they are without merit. Present—Hurlbutt, J.P., Martoche, Smith, Centra andPeradotto, JJ.