| People v Smith |
| 2014 NY Slip Op 04523 [118 AD3d 920] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alan L. Smith, Appellant. |
Michael G. Paul, New City, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered August 15, 2012, convicting him of driving while intoxicated inviolation of Vehicle and Traffic § 1192 (2) and aggravated unlicensedoperation of a motor vehicle in the first degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant, who was represented by counsel at trial, contends that the CountyCourt erred in declining to entertain his pro se motion for a change of venue. However, adefendant who chooses to defend through counsel cannot, as of right, make motions, andthe decision whether to entertain a pro se motion is solely within the court's discretion(see People v Rodriguez, 95 NY2d 497, 501-502 [2000]; People v Rogers, 63 AD3d1631 [2009]; People v Delgado, 285 AD2d 654 [2001]). Here, the CountyCourt did not improvidently exercise its discretion in declining to entertain the pro semotion, which was not adopted by defense counsel (see People v Miles, 8 AD3d 758 [2004]; People vSmith, 278 AD2d 126 [2000]).
The defendant also contends that, during the trial, the People improperly elicitedstatements that he made to law enforcement officials that were not noticed to the defensepursuant to CPL 710.30, and which were not explored at a Huntley hearing(see People v Huntley, 15 NY2d 72 [1965]). This contention is without merit.The statements in question were not the product of police questioning, but were"spontaneous and uncontestably voluntary," and thus, the People were not required togive notice pursuant to CPL 710.30 (People v Cox, 215 AD2d 684, 685 [1995];see People v Greer, 42 NY2d 170, 178 [1977]; People v Chase, 199AD2d 405, 406 [1993]).
A trial court has the power to alter the order of proof, in its discretion and in thefurtherance of justice, at least up to the time the case is submitted to the jury (seePeople v Whipple, 97 NY2d 1, 6 [2001]; People v Washington, 71 NY2d916, 918 [1988]; People v Durden, 204 AD2d 480 [1994]). Contrary to thedefendant's contention, he was not prejudiced as a result of the County Court'sdetermination permitting the People to reopen their case to submit his mugshot intoevidence (see [*2]People v Durden, 204 AD2d at481).
The defendant further contends that he was prejudiced by the County Court'sdecision to grant the People's motion in limine, made one day after the time frame givenby the court for such motions, to admit into evidence his Department of Motor Vehiclesdriving abstract, which indicated a prior conviction of driving while intoxicated and alicense suspension. The abstract was admissible pursuant to the business recordsexception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10) and did not violatethe defendant's constitutional right to confrontation (see People v Stewart, 68 AD3d 1438 [2009]; People v Carney, 41 AD3d1239, 1240 [2007]; see alsoPeople v Maldonado, 44 AD3d 793 [2007]; see generally Crawford vWashington, 541 US 36, 51-54 [2004]). In addition, the defendant has notdemonstrated that he was prejudiced by the admission of the abstract.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. Mastro, J.P., Lott, Sgroi andCohen, JJ., concur.