Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Ronald BYNUM, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, VALENTINO AND WHALEN, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree ( Penal Law § 160.10[1] ) and criminal possession of stolen property in the fifth degree (§ 165.40). Contrary to defendant's contention, Supreme Court did not abuse its discretion in conducting the trial in his absence. The court provided defendant with the requisite warnings pursuant to People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 and informed him of the date on which the trial would begin, but defendant "waived his right to be present at trial ... by failing to appear at the appointed time or within a reasonable time thereafter" ( People v. Lewis, 57 A.D.3d 1505, 1506, 870 N.Y.S.2d 652, lv. denied 12 N.Y.3d 785, 879 N.Y.S.2d 62, 906 N.E.2d 1096 ). In addition, "the court made a proper inquiry and placed its reasoning on the record for determining that defendant's absence was deliberate" ( People v. Zafuto, 72 A.D.3d 1623, 1624, 902 N.Y.S.2d 269, lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 ; see People v. Brooks, 75 N.Y.2d 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328 ).
Defendant contends that the court erred in denying that part of his omnibus motion seeking to suppress showup identification testimony. Even assuming, arguendo, that the court erred in denying that part of the omnibus motion, we conclude that the error is harmless beyond a reasonable doubt (see People v. Wade, 118 A.D.3d 1370, 1370–1371, 988 N.Y.S.2d 351, lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 ; People v. Rodriguez, 32 A.D.3d 1203, 1204, 821 N.Y.S.2d 331, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 ).
Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct during the prosecutor's opening statement and summation. Defendant failed to preserve that contention for our review inasmuch as he did not object to the alleged misconduct (see People v. Ward, 107 A.D.3d 1605, 1606, 966 N.Y.S.2d 805, lv. denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 ; People v. Glenn, 72 A.D.3d 1567, 1568, 901 N.Y.S.2d 771, lv. denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; Glenn, 72 A.D.3d at 1568, 901 N.Y.S.2d 771 ). 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 the representation, we conclude that defendant was afforded meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
Contrary to defendant's contention, the court's Sandoval ruling did not constitute an abuse of discretion (see People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 ). The court properly permitted questioning concerning defendant's prior convictions of theft, escape, and criminal impersonation inasmuch as those crimes "involved acts of dishonesty and thus were probative with respect to the issue of defendant's credibility" ( People v. Salsbery, 78 A.D.3d 1624, 1626, 911 N.Y.S.2d 547, lv. denied 16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188 ; see People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.