Opinion
No. 570357/08.
09-29-2015
The PEOPLE of the State of New York, Respondent, v. Goce CVETKOVSKI, Defendant–Appellant.
Opinion
PER CURIAM.
Judgment of conviction (Ellen M. Coin, J.), rendered April 4, 2008, affirmed.
Defendant's conviction for resisting arrest (see Penal Law § 205.30) was supported by legally sufficient evidence. It was “not necessary that ... defendant be specifically informed that he was to be arrested in order for [his] resisting arrest conviction to stand; it is sufficient that such knowledge was inferable from the surrounding facts and circumstances” (Matter of Davaun M., 44 AD3d 420 2007, quoting People v. Gray, 189 A.D.2d 922, 923 1993, lv denied 81 N.Y.2d 886 1993 ). Here, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620 1983 ), the jury could rationally infer that defendant knew he was being arrested when the officers removed their handcuffs and ordered defendant to place his hands behind his back; and that defendant's flailing and physical struggle with the officers were deliberate acts to resist arrest (see People v. Badia, 46 AD3d 312 2007, lv denied 10 NY3d 761 2008; People v. Karim, 176 A.D.2d 670 1991, lv denied 79 N.Y.2d 859 1992 ). Nor was the conviction against the weight of the evidence (see People v. Bleakely, 69 N.Y.2d 490, 495 1987 ).
The court properly exercised its discretion (see generally People v. Foy, 32 N.Y.2d 473 1973 ) in denying defendant's request for a midtrial adjournment to obtain the presence of a witness who would have allegedly corroborated defendant's testimony (see e.g. People Fayton, 4 AD3d 143 2004, lv denied 2 NY3d 799 2004 ). Defendant failed to sustain his burden of showing, by an offer of proof, that the testimony of the witness would be material, noncumulative and “favorable to the defense” (see Matter of Anthony M., 63 N.Y.2d 270, 284 1984; People v. McMath, 54 AD3d 566 2008, lv denied 11 NY3d 927 2009. Nor was there a showing of a diligent and good-faith attempt on the part of the defendant to insure the witness's appearance at trial (see People v. Mesa, 195 A.D.2d 422, 423 1993, lv denied 82 N.Y.2d 899 1993 ). Moreover, since the expected testimony of this witness remains unclear, there is no basis upon which to find that defendant was prejudiced by the court's ruling (see People v. Acevedo, 295 A.D.2d 141 2002, lv denied 98 N.Y.2d 766 2002 ). Defendant's argument that the court's ruling violated his constitutional right to present a defense is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits for the reasons already stated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.