        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

354
KA 10-02121
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

QUINCEY L. WALKER, JR., DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE ABBATOY LAW FIRM, PLLC,
ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered June 23, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree (three counts) and criminal possession
of a controlled substance in the seventh degree (three counts).

     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 three counts of criminal sale of a controlled
substance in the third degree (Penal Law § 220.39 [1]) and three
counts of criminal possession of a controlled substance in the seventh
degree (§ 220.03). Contrary to defendant’s contention, County Court
did not abuse its discretion in denying defendant’s request for a
lengthier adjournment. “The decision whether to grant an adjournment
lies in the sound discretion of the trial court . . . , and the
court’s exercise of that discretion ‘in denying a request for an
adjournment will not be overturned absent a showing of prejudice’ ”
(People v Adair, 84 AD3d 1752, 1754, lv denied 17 NY3d 812). Here,
defendant requested an adjournment at the start of the trial because
he had received documents from the People the previous evening showing
that marked buy money was recovered from defendant upon his arrest
after one of the alleged sales. Defense counsel indicated that he
wanted to contact defendant’s two former attorneys inasmuch as he
believed that they had been told that no buy money was ever recovered
from defendant. The court granted a half-day adjournment, and we
conclude that it was not an abuse of discretion for the court to deny
defendant’s request for a more extended adjournment (see generally
People v Spears, 64 NY2d 698, 699-700).
                                 -2-                           354
                                                         KA 10-02121

     We reject defendant’s contention that he was denied effective
assistance of counsel. Defendant failed to show the absence of
strategic or other legitimate explanations for defense counsel’s
waiver of the Huntley and Wade hearings and, indeed, the record
establishes that defense counsel waived those hearings in exchange for
early discovery of Rosario material (see People v Sinkler, 112 AD3d
1359, 1361; People v Jurjens, 291 AD2d 839, 840, lv denied 98 NY2d
652; see generally People v Rivera, 71 NY2d 705, 709). Moreover,
defendant failed to show that those hearings would have been
successful (see generally People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702). We further conclude that defense counsel was not
ineffective based on certain comments he made about defendant during
his opening and closing statements (see People v Washington [appeal
No. 2], 19 AD3d 1180, 1180-1181, lv denied 5 NY3d 833).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). Defendant failed to preserve for our review his contention that
he was penalized for rejecting the plea offer and exercising his right
to a jury trial (see People v Stubinger, 87 AD3d 1316, 1317, lv denied
18 NY3d 862). In any event, that contention is without merit (see
id.), and the sentence is not unduly harsh or severe.




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
