PEOPLE v. ANDERSON

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

The PEOPLE of the State of New York, Respondent, v. Donovan ANDERSON, Defendant-Appellant.

Decided: June 13, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, GREEN, AND PINE, JJ. Neal D. Futerfas, White Plains, for Defendant-Appellant. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.

On appeal from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the first degree (Penal Law former § 220.21[1] ), defendant contends that County Court erred in refusing to suppress the drugs found in his vehicle because the police lacked probable cause to stop and search his vehicle.   We conclude that defendant abandoned that contention, inasmuch as he failed to seek a ruling on that part of his omnibus motion or to object to the admission of that evidence at trial (see People v. Smith, 13 A.D.3d 1121, 1122, 786 N.Y.S.2d 879, lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94;  People v. Smikle, 1 A.D.3d 883, 884, 767 N.Y.S.2d 727, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291;  see generally People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475).   Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800) and, in any event, that contention is without merit.   The prosecutor's comments were either a fair response to defense counsel's summation or fair comment on the evidence (see People v. McCauley, 19 A.D.3d 1130, 1131, 796 N.Y.S.2d 488, lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160).   Defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).

Contrary to the contention of defendant, the court did not abuse its discretion in trying and sentencing him in absentia.   Based on the record before us, we conclude that defendant had received 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 was informed that the trial would commence on a certain date.   We thus conclude that defendant waived his right to be present at trial and at sentencing (see People v. Jones, 31 A.D.3d 1193, 817 N.Y.S.2d 849, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144;  People v. Almonte, 210 A.D.2d 911, 620 N.Y.S.2d 661, lv. denied 85 N.Y.2d 859, 624 N.Y.S.2d 378, 648 N.E.2d 798;  People v. Daley, 207 A.D.2d 1000, 617 N.Y.S.2d 68, lv. denied 84 N.Y.2d 1010, 622 N.Y.S.2d 922, 647 N.E.2d 128).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: