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People v. Richardson

203 A.D.2d 932 Court N.Y. App. Div. Decision date 1994-04-15 English

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p. 932
The People of the State of New York, Respondent, v Jerwie Richardson, Also Known as Jerry Richardson, Appellant.
[611 NYS2d 463]

—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

p. 933
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.

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