| People v Paige |
| 2009 NY Slip Op 09515 [68 AD3d 609] |
| December 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dennis E. Paige, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Rachel R. Yocum of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered September 20,2006, as amended December 18, 2006, convicting defendant, after a jury trial, of robbery in thefirst and second degrees, kidnapping in the second degree and criminal possession of stolenproperty in the fourth degree, and sentencing him, as a second felony offender, to an aggregateterm of 16 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's request for an adjournmentfor the purpose of attempting to locate a possible surrebuttal witness (see Matter of AnthonyM., 63 NY2d 270, 283-284 [1984]; People v Foy, 32 NY2d 473, 476 [1973]).Defendant became aware of the People's expected rebuttal testimony five days earlier in the trial,but made no effort to locate the surrebuttal witness. Furthermore, defendant had no informationabout the witness except a first name and a tenuous means of contacting him. Accordingly, thelikelihood that defendant could find the witness and bring him to court was speculative at best.Moreover, the value of this witness's proposed testimony was dubious, especially since it wouldhave conflicted with the testimony of a witness defendant had already called. To the extentdefendant is arguing that he had a constitutional right to an adjournment, that claim isunpreserved (see People v Lane, 7NY3d 888, 889 [2006]) and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits (see Ungar v Sarafite, 376 US 575,589 [1964]).
Defendant did not preserve his claim that there was an insufficient foundation for testimonyby a records custodian that cell phone records showed the probable location of defendant's phoneat a time a particular call was made, and we decline to review it in the interest of justice. As analternative holding, we conclude that the custodian testified to matters within her knowledge andexperience. Trial counsel's failure to object did not deprive defendant of effective assistance.Counsel could have reasonably concluded that demanding more of a foundation would have hadthe counterproductive result of causing the People [*2]to elicitthe same evidence in a manner more impressive to the jury. Concur—Gonzalez, P.J., Tom,Sweeny, Freedman and Abdus-Salaam, JJ.