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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven STOKES, Defendant-Appellant.

Decided: May 15, 2003

NARDELLI, J.P., MAZZARELLI, WALLACH, FRIEDMAN and MARLOW, JJ. Sheryl Feldman, for Respondent. Jojo Annobil, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered March 6, 2001, convicting defendant, after a jury trial, of robbery in the third degree, grand larceny in the fourth degree (seven counts), criminal possession of stolen property in the fourth degree (seven counts) and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent felony offender, to an aggregate term of 15 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant's last-minute request for a one-day adjournment for the purpose of locating a witness (see People v. Foy, 32 N.Y.2d 473, 476, 346 N.Y.S.2d 245, 299 N.E.2d 664).   The probative value of this witness's proposed testimony was minimal, at best (see Matter of Anthony M., 63 N.Y.2d 270, 283-284, 481 N.Y.S.2d 675, 471 N.E.2d 447), particularly since her testimony was offered to refute an argument the People never made, and which the court precluded the People from making.   Furthermore, “the court was given no reason to believe that counsel would be able to locate her or that she would be willing to testify” (People v. Acevedo, 295 A.D.2d 141, 742 N.Y.S.2d 833, lv. denied 98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918).   Accordingly, there was no violation of defendant's right to present a defense.

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160).