People v. Richardson

203 A.D.2d 932, 611 N.Y.S.2d 463

Opinion

—Judgment unanimously affirmed. Memorandum: Although the prosecutor failed timely to provide defense counsel with the criminal record of a People’s witness prior to opening statements (see, CPL 240.45 [1] [b]), that record was provided prior to direct examination of that witness and the trial court offered defense counsel an adjournment prior to cross-examination. After direct examination, defense counsel declined the court’s offer of an adjournment and indicated that he was ready to proceed. Defense counsel conducted an effective cross-examination of the witness, including examination concerning prior convictions. Under the circumstances, the untimely disclosure does not warrant reversal (see, People v Donald, 107 AD2d 818; People v Napierala, 90 AD2d 689).

Contrary to defendant’s contention, New York does not require that a defendant personally waive the right to testify on the record (see, People v Fratta, 83 NY2d 771). Defendant failed to object to cross-examination of a defense alibi witness upon the ground that questioning the witness concerning pretrial silence was impermissible (see, People v Dawson, 50 NY2d 311). Thus, defendant failed to preserve that issue for appellate review (see, CPL 470.05 [2]; People v West, 56 NY2d 662; People v Dawson, supra, at 324). Defendant raised no exception to the court’s jury instructions, thereby failing to preserve his challenge to those instructions (see, CPL 470.05 [2]; People v Lipton, 54 NY2d 340, 351). We decline to review either issue in the interest of justice. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Robbery, 1st Degree.) Present — Denman, P. J., Balio, Fallon, Doerr and Davis, JJ.