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

615
KA 12-00766
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY LINDSEY, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 7, 2012. The judgment
convicted defendant, upon a jury verdict, of aggravated driving while
intoxicated, aggravated unlicensed operation of a motor vehicle in the
first degree, driving while intoxicated and endangering the welfare of
a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of aggravated driving while intoxicated (Vehicle and
Traffic Law § 1192 [2-a] [b]), aggravated unlicensed operation of a
motor vehicle in the first degree (§ 511 [3] [a]), driving while
intoxicated (§ 1192 [3]), and endangering the welfare of a child
(Penal Law § 260.10 [1]), defendant contends that Supreme Court abused
its discretion in denying his request for an adjournment of the trial
to secure an allegedly reluctant defense witness, i.e., defendant’s
girlfriend at the time of his arrest. We reject that contention.

     “It is well established that the decision whether to grant an
adjournment is a matter resting within the sound discretion of the
trial court . . . It is also well established, however, that there is
a more liberal policy in favor of granting a short adjournment . . .
when the delay is requested in order to insure a fundamental right . .
. , e.g., the request for an adjournment to produce an [exculpatory]
witness, and that the court’s discretionary power is more narrowly
constru[ed] in those circumstances” (People v Walker, 28 AD3d 1116,
1117 [internal quotation marks omitted], amended on rearg 31 AD3d
1226; see Chambers v Mississippi, 410 US 284, 302). The proponent of
an adjournment to secure witness testimony is required to show that he
or she exercised “reasonable diligence” in procuring the witness’s
                                 -2-                           615
                                                         KA 12-00766

testimony (People v Becoats, 17 NY3d 643, 652, cert denied ___ US ___,
132 S Ct 1970; see People v Johnson, 145 AD2d 573, 574, lv denied 73
NY2d 923).

     Here, we conclude that the “court was justified in finding . . .
that defense counsel did not act with reasonable diligence” in
securing the witness’s testimony (Becoats, 17 NY3d at 652). Defense
counsel acknowledged to the court that both she and defendant’s
investigator had spoken to the witness, and the witness was on
defendant’s witness list, thereby indicating that defendant understood
that the witness would provide him with exculpatory testimony.
Between arraignment and trial, however—a period of almost six
months—defense counsel took no steps to secure the witness’s
appearance, but instead relied on the People, who had obtained a
material witness order, to secure the witness’s appearance at trial.
Moreover, the record establishes that defense counsel spoke to the
witness the night before she sought the adjournment, and the witness
was in the courthouse, albeit with respect to her own criminal matter,
on the day that defense counsel sought the adjournment. Those facts
undermine defense counsel’s assertion to the court that the witness
was difficult to locate. We therefore perceive no abuse of discretion
in the denial of the request for an adjournment (see Walker, 28 AD3d
at 1117).

      With respect to defendant’s remaining contention, the People
correctly concede that the court erred in admitting the affidavit of
mailing in order to prove defendant’s knowledge of the prior
suspension of his license, which is an element of aggravated
unlicensed operation of a motor vehicle in the first degree, because
an affidavit of mailing is testimonial in nature (see People v Pacer,
6 NY3d 504, 507-508). We nevertheless conclude that, in light of
defendant’s admission to the police that he knew his license had been
suspended, the error is harmless (see People v Douglas, 4 NY3d 777,
779).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
