PEOPLE v. ACEVEDO

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

The PEOPLE of the State of New York, Respondent, v. Amodor ACEVEDO, Also Known as Amador Aceveda, Defendant-Appellant.

Decided: April 20, 2000

NARDELLI, J.P., TOM, ELLERIN, LERNER and ANDRIAS, JJ. Kenneth C. Rudd, for Respondent. Lynne F. Stewart, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Joseph Mazur, J.), rendered September 6, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and loitering in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 7 1/212 to 15 years and 1 year, unanimously modified, on the law, to the extent of reducing the sentence for loitering to 3 months, and otherwise affirmed.

 Defendant was properly tried and sentenced in absentia after he failed to appear on the second day of trial and the People established at a hearing that reasonable efforts had been made to locate him.   The court properly denied a defense application to adjourn the trial to permit defense counsel to conduct a further investigation into defendant's whereabouts, since defendant's absence was clearly deliberate and there was no reason to expect that defendant's presence could be obtained after a further delay (see, People v. Johnson, 262 A.D.2d 155, 156, 693 N.Y.S.2d 7, lv. denied 94 N.Y.2d 798, 700 N.Y.S.2d 432, 722 N.E.2d 512).

 The court's Sandoval ruling, permitting inquiry into the underlying facts of defendant's youthful offender adjudication for robbery and his conviction for escape but barring inquiry as to his prior drug convictions, was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472).

 The court properly admitted into evidence the cash recovered from defendant since such evidence was clearly relevant to the charge of possession with intent to sell (People v. Haynes, 172 A.D.2d 242, 567 N.Y.S.2d 736, lv. denied 78 N.Y.2d 967, 574 N.Y.S.2d 946, 580 N.E.2d 418).   Any error in admission of a folding knife recovered from defendant was harmless.

 We perceive no abuse of sentencing discretion.   However, as the People correctly concede, the maximum sentence that may be imposed for loitering in the first degree is 3 months imprisonment and therefore we reduce defendant's sentence accordingly.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

MEMORANDUM DECISION.