Opinion
April 29, 1998
Appeal from the Ontario County Court, Henry, Jr., J. — Criminal Sale Controlled Substance, 3rd Degree.)
Present — Lawton, J.P., Baho, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: We held this case, reserved decision and remitted the matter to Ontario County Court to conduct a hearing on the issue whether the 14-month delay between defendants arrest and indictment was unreasonable or resulted from a good faith determination to defer prosecution for investigation or for other sufficient reasons ( People v. Lush, 234 A.D.2d 991). At the hearing, a police officer involved in the investigation testified for the People. The court properly concluded that, although some prejudice may have resulted from the delay, the determination to defer prosecution was made in good faith and for sufficient reasons and did not deny defendant due process of law ( see, People v. Singer, 44 N.Y.2d 241, 254).
We reject the contention of defendant that the court erred in denying his request for a missing witness charge with respect to the Peoples failure to call the confidential informant to testify. The People established that the informant was unavailable because he could not be located despite diligent efforts on the part of the Ontario County Sheriff's Department ( see, People v. Skaar, 225 A.D.2d 824, lv denied 88 N.Y.2d 854).
Reversal is not required by the admission into evidence of an audiotape that the court reporter was not required to transcribe. The court did not err in determining that the audiotape was audible ( see, People v. Lubow, 29 N.Y.2d 58, 68; People v. Watson, 172 A.D.2d 882, 883).
The courts evidentiary rulings did not deprive defendant of a fair trial. The evidence excluded by the court" `raise[d] a mere suspicion'" that another person committed the crime ( People v. Zanfordino, 157 A.D.2d 682, 683, lv denied 75 N.Y.2d 971; see, People v. DiPalo, 221 A.D.2d 463, lv denied 88 N.Y.2d 846).
The court properly exercised its discretion in denying defendants request for an adjournment to subpoena defendants brother to testify. The court stated that it would not grant "an undue adjournment" but that defense counsel could immediately attempt to call the brother to bring him in. A recess was taken after which the defense called its final witness without requesting a further adjournment. The court also properly exercised its discretion in allowing the People to cross-examine defendant regarding his conviction of burglary in the third degree eight years earlier. That conviction involved dishonesty and was highly relevant to the credibility of defendant and his willingness to advance his self-interest at the expense of others ( see, People v. Sandoval, 34 N.Y.2d 371, 377; People v. Moody, 229 A.D.2d 936, lv denied 89 N.Y.2d 926). That conviction was not too remote in time to be relevant ( see, People v. Rodriguez, 181 A.D.2d 841; People v. Alexander, 176 A.D.2d 947, lv denied 79 N.Y.2d 852).
The evidence is legally sufficient with respect to each element of the crimes of which defendant was convicted ( see, People v. Bleakley, 69 N.Y.2d 490, 495).