Opinion
570853/05.
Decided August 4, 2008.
Defendant appeals from a judgment of the Criminal Division of the Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 27, 2005, convicting him, after a nonjury trial, of attempted assault in the third degree, and imposing sentence.
Judgment of conviction (Joseph Fisch, J.), rendered April 27, 2005, affirmed.
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ.
The trial court properly exercised its discretion in denying defendant's request for a second midtrial adjournment to obtain the testimony of a purported alibi witness. Although defendant never provided a notice of alibi nor offered an explanation for his late application, the trial court initially granted defendant a six-day adjournment to obtain the testimony of the potential witness who allegedly was in Ohio. On the return trial date, defense counsel represented that messages left on the witness' cellular phone went unanswered and that the parents of the witness indicated that he had not returned. In these circumstances, and since the trial court was given no reason to believe that defendant would be able to locate the witness or that the witness would be willing to testify ( see People v Foy, 32 NY2d 473), the request for a second adjournment was properly denied ( see People v Stokes, 305 AD2d 227, lv denied 1 NY3d 581). To the extent that defendant is raising a constitutional claim, such claim is unpreserved ( see People v Angelo, 88 NY2d 217, 222) and we decline to review in the interest of justice. As an alternative holding, we would reject it.
Upon the Court's own motion, the decision and order of this Court entered on March 6, 2008 is hereby recalled and vacated and the above substituted therefor."
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.