| People v Bynum |
| 2015 NY Slip Op 00991 [125 AD3d 1278] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRonald Bynum, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered May 16, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree and criminal possession of stolen property in the fifthdegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the second degree (Penal Law § 160.10 [1]) andcriminal possession of stolen property in the fifth degree (§ 165.40).Contrary to defendant's contention, Supreme Court did not abuse its discretion inconducting the trial in his absence. The court provided defendant with the requisitewarnings pursuant to People v Parker (57 NY2d 136, 141 [1982]) and informedhim of the date on which the trial would begin, but defendant "waived his right to bepresent at trial . . . by failing to appear at the appointed time or within areasonable time thereafter" (People v Lewis, 57 AD3d 1505, 1506 [2008], lvdenied 12 NY3d 785 [2009]). In addition, "the court made a proper inquiry andplaced its reasoning on the record for determining that defendant's absence wasdeliberate" (People vZafuto, 72 AD3d 1623, 1624 [2010], lv denied 15 NY3d 758 [2010];see People v Brooks, 75 NY2d 898, 899 [1990]).
Defendant contends that the court erred in denying that part of his omnibus motionseeking to suppress showup identification testimony. Even assuming, arguendo, that thecourt erred in denying that part of the omnibus motion, we conclude that the error isharmless beyond a reasonable doubt (see People v Wade, 118 AD3d 1370, 1370-1371[2014], lv denied 24 NY3d 965 [2014]; People v Rodriguez, 32 AD3d 1203, 1204 [2006], lvdenied 8 NY3d 849 [2007]).
Defendant further contends that he was deprived of a fair trial by prosecutorialmisconduct during the prosecutor's opening statement and summation. Defendant failedto preserve that contention for our review inasmuch as he did not object to the allegedmisconduct (see People vWard, 107 AD3d 1605, 1606 [2013], lv denied 21 NY3d 1078 [2013];People v Glenn, 72 AD3d1567, 1568 [2010], lv denied 15 NY3d 805 [2010]). We decline to exerciseour power to review defendant's contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]; Glenn, 72 AD3d at 1568).
We reject defendant's contention that he was denied effective assistance of counsel.Viewing defense counsel's representation as a whole and as of the time of therepresentation, we conclude that defendant was afforded meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's contention, the court's Sandoval ruling did notconstitute an abuse of discretion (see People v Sandoval, 34 NY2d 371, 374[1974]). The court properly permitted questioning concerning defendant's priorconvictions of theft, escape, and criminal [*2]impersonation inasmuch as those crimes "involved acts ofdishonesty and thus were probative with respect to the issue of defendant's credibility"(People v Salsbery, 78AD3d 1624, 1626 [2010], lv denied 16 NY3d 836 [2011]; see People v Stevens, 109AD3d 1204, 1205 [2013], lv denied 23 NY3d 1043 [2014]). Finally, thesentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Valentino andWhalen, JJ.