| People v Tanner |
| 2009 NY Slip Op 08696 [67 AD3d 609] |
| November 24, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Johnny Tanner, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 4,2007, as amended January 14, 2008, convicting defendant, after a jury trial, of seven counts eachof grand larceny in the fourth degree and criminal possession of stolen property in the fourthdegree and sentencing him, as a second felony offender, to an aggregate term of 1½ to 3years, unanimously affirmed.
The court properly granted defendant's application to represent himself. The record, taken asa whole (see People v Providence,2 NY3d 579, 583 [2004]), establishes that defendant made a knowing and intelligent waiverof his right to counsel. The record does not support defendant's assertions that his request toproceed pro se may have been equivocal or the product of mental infirmity.
Defendant's claim that testimony concerning the contents of an erased videotape violated thebest evidence rule is unpreserved and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits (see Schozer v William Penn Life Ins. Co.of N.Y., 84 NY2d 639, 643-644 [1994]). Concur—Mazzarelli, J.P., Nardelli,Catterson, DeGrasse and Roman, JJ.