PEOPLE v. POVIO (2001)

Defendant was convicted following a jury trial of sodomy in the first degree (Penal Law former § 130.50[3]), sodomy in the second degree (Penal Law former § 130.45), and two counts of endangering the welfare of a child (Penal Law § 260.10[1]).   The charges arose out of two incidents in which defendant engaged in deviate sexual intercourse with his stepson, who was eight years old when the first incident occurred and 11 years old when the second incident occurred.   Defendant retained a new attorney one week before the scheduled trial date, and County Court denied the request of that attorney, made three days before trial was to commence, for a brief continuance in order to prepare for trial.   Under the circumstances of this case, we conclude that the court did not abuse its discretion in denying the request for a continuance made on the eve of trial (see, People v. Michalek, 195 A.D.2d 1007, 1008, 600 N.Y.S.2d 571, lv. denied 82 N.Y.2d 807, 604 N.Y.S.2d 943, 624 N.E.2d 1038;  People v. Rosica, 171 A.D.2d 931, 933, 567 N.Y.S.2d 324, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412;  People v. Gabler, 129 A.D.2d 733, 514 N.Y.S.2d 493).   Defendant failed to meet his burden of demonstrating that “the requested adjournment [had] been necessitated by forces beyond his control and [was] not simply a dilatory tactic” (People v. Arroyave, 49 N.Y.2d 264, 272, 425 N.Y.S.2d 282, 401 N.E.2d 393).   In addition, defendant did not specify how he would be prejudiced if the trial were not adjourned (see, People v. LaValla, 272 A.D.2d 960, 961, 708 N.Y.S.2d 212, lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866;  People v. Queeglay, 237 A.D.2d 896, 656 N.Y.S.2d 1015, lv. denied 90 N.Y.2d 866, 661 N.Y.S.2d 193, 683 N.E.2d 1067).   We have reviewed the contentions of defendant in his pro se supplemental brief and conclude that they have no merit.

Judgment unanimously affirmed.

MEMORANDUM: