PEOPLE v. DeJESUS

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Edvar DeJESUS, Defendant-Appellant.

Decided: June 12, 1997

Before MURPHY, P.J., and MILONAS, TOM, ANDRIAS and COLABELLA, JJ. Alan Gadlin, for respondent. Michelle L. Flaxman, for defendant-appellant.

Judgment, Supreme Court, New York County (Colleen McMahon, J.), rendered March 18, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and two counts of criminal use of drug paraphernalia in the second degree, and sentencing him to concurrent prison terms of 20 years to life, 2 to 6 years, 1 to 3 years, 1 year, and 1 year, respectively, unanimously affirmed.

 The trial court appropriately exercised its discretion in admitting testimony of a prior uncharged crime committed by defendant in the apartment premises in question, because any potential for prejudice was exceeded by its probative value regarding the contested issue of whether defendant had dominion and control over the premises containing the contraband that defendant was charged with possessing constructively (see, People v. Waite, 183 A.D.2d 796, 583 N.Y.S.2d 523, lv denied 80 N.Y.2d 839, 587 N.Y.S.2d 924, 600 N.E.2d 651).

 The trial court's denial of defendant's sentencing date application to adjourn the proceeding did not deny defendant's rights to counsel of his choosing and to effective assistance of counsel.   The record indicates that defendant's newly retained counsel withdrew his request to be substituted when the court denied the requested adjournment, a matter within the court's sound discretion, and defendant's trial counsel then proceeded to competently represent defendant at sentencing.   Since defendant's trial counsel and the court were familiar with the facts of the case and as defendant's trial counsel, his newly retained counsel, and defendant himself did not take advantage of the opportunity to offer any mitigating circumstances for the court's consideration prior to imposition of a lawful sentence, the court's denial of the request for an adjournment for preparation of a presentence memorandum constituted an appropriate exercise of discretion (see, People v. Alpern, 217 A.D.2d 853, 630 N.Y.S.2d 106, lv denied 87 N.Y.2d 897, 641 N.Y.S.2d 227, 663 N.E.2d 1257).

MEMORANDUM DECISION.