Opinion
1218 KA 15–01595
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Jerry BENTON, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1 ] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ). Contrary to defendant's contention, we conclude that County Court did not abuse its discretion in denying his request for an adjournment to afford defense counsel additional time to prepare for trial. " ‘[T]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( People v. Diggins, 11 N.Y.3d 518, 524, 872 N.Y.S.2d 408, 900 N.E.2d 959 [2008] ), and "[t]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v. Arroyo, 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499 [4th Dept. 1990], lv denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891 [1990] ). Defendant did not make that showing here.
Upon our review of the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, we reject defendant's further contention that he received ineffective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Additionally, defendant correctly concedes that he failed to preserve for our review his contention with respect to alleged prosecutorial misconduct (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Contrary to defendant's contention, we conclude that "the record reflects that the court properly exercised its discretion in sentencing defendant ‘after careful consideration of all facts available’ " ( People v. Brudecki, 32 A.D.3d 1255, 1255, 821 N.Y.S.2d 730 [4th Dept. 2006], lv denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995 [2006], reconsideration denied 8 N.Y.3d 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007], quoting People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; see People v. Jones, 43 A.D.3d 1296, 1299, 843 N.Y.S.2d 880 [4th Dept. 2007], lv denied 9 N.Y.3d 991, 848 N.Y.S.2d 608, 878 N.E.2d 1024 [2007], reconsideration denied 10 N.Y.3d 812, 857 N.Y.S.2d 46, 886 N.E.2d 811 [2008] ). Finally, the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).