| People v Stanley |
| 2017 NY Slip Op 08152 [155 AD3d 1684] |
| November 17, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Antuan M.Stanley, Appellant. |
David P. Elkovitch, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedJanuary 26, 2016. The judgment convicted defendant, upon a jury verdict, of promoting prisoncontraband in the first degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). We rejectdefendant's contention that County Court's Sandoval ruling constituted an abuse ofdiscretion inasmuch as the court allowed the People to cross-examine defendant with respect to,inter alia, a prior conviction of criminal possession of a weapon in the second degree."Cross-examination of a defendant concerning a prior crime is not prohibited solely because ofthe similarity between that crime and the crime charged" (People v Cosby, 82 AD3d 63, 68 [4th Dept 2011], lv denied16 NY3d 857 [2011]).
Defendant failed to preserve for our review his further contention that he was deprived of afair trial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Simmons, 133 AD3d1227, 1228 [4th Dept 2015]). In any event, that contention is without merit (see generallyPeople v Halm, 81 NY2d 819, 821 [1993]). Defendant also failed to preserve for our reviewhis contention that the court's pre-summation instruction to the jury was misleading because itfailed to differentiate between defendant's role as a witness and his role as pro se counselinasmuch as defendant failed to make a " 'timely objection or request to charge' "(People v Justice, 99 AD3d1213, 1216 [4th Dept 2012], lv denied 20 NY3d 1012 [2013]). In any event, thatcontention is also without merit because the court's instruction, read as a whole, did not conveyto the jury that they should disregard defendant's testimony in his capacity as a witness.
Defendant also contends that the court should have adjourned the trial to wait for the arrivalof defendant's subpoenaed medical records and that he was thereby denied his right to present adefense. The record establishes that defendant did not request an adjournment on that groundand, indeed, he informed the court that he was willing to proceed with trial without thesubpoenaed medical records. Thus, defendant waived his present contention (see generallyPeople v Ahmed, 66 NY2d 307, 311 [1985], rearg denied 67 NY2d 647 [1986]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Whalen, P.J.,Peradotto, DeJoseph, NeMoyer and Troutman, JJ.