Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Aiman H. ABUJUDEH, Defendant–Appellant.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of Counsel), for Respondent.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, willful possession or transport of unstamped cigarettes ( seeTax Law § 1814[c][1] ). We reject defendant's challenges to County Court's exercises of discretion. The court properly exercised its discretion in conducting the trial in his absence ( see People v. Parker, 57 N.Y.2d 136, 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313). The court issued repeated Parker warnings to defendant and, when defendant failed to appear, it conducted a sufficient inquiry to warrant the conclusion that his “nonappearance constituted a waiver of his right to be present at trial” (People v. Williams, 170 A.D.2d 968, 969, 566 N.Y.S.2d 135, lv. denied77 N.Y.2d 968, 570 N.Y.S.2d 502, 573 N.E.2d 590; see People v. Toomer, 272 A.D.2d 990, 991, 708 N.Y.S.2d 652, lv. denied95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375). The court also properly exercised its discretion in limiting defendant's cross-examination of a prosecution witness ( see People v. Bryant, 73 A.D.3d 1442, 1443, 900 N.Y.S.2d 810, lv. denied15 N.Y.3d 850, 909 N.Y.S.2d 27, 935 N.E.2d 819).
Contrary to defendant's contention, we conclude that the People established a proper foundation for the admission of the cigarettes in evidence ( see People v. Foley, 257 A.D.2d 243, 254, 692 N.Y.S.2d 248, affd. 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, cert. denied531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124; People v. Jackson, 306 A.D.2d 910, 910–911, 762 N.Y.S.2d 462, lv. denied100 N.Y.2d 595, 766 N.Y.S.2d 170, 798 N.E.2d 354, reconsideration denied1 N.Y.3d 540, 775 N.Y.S.2d 245, 807 N.E.2d 295), and “any irregularities in the chain of custody went to the weight of the evidence rather than its admissibility” (People v. Washington, 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407, lv. denied9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205). Viewing the evidence in light of the elements of the crime of willful possession or transport of unstamped cigarettes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Finally, defendant's contention with respect to the alleged violation of his right to seek remission of his forfeited bail is not properly raised on the appeal from his judgment of conviction ( see People v. Baron, 133 A.D.2d 833, 834–835, 520 N.Y.S.2d 205, lv. denied70 N.Y.2d 929, 524 N.Y.S.2d 680, 519 N.E.2d 626).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.