Opinion
May 28, 1991
Appeal from the Supreme Court, New York County (Michael Obus, J.).
The evidence at trial shows that Stanford Hewitt and his three companions happened upon defendant, co-defendant Rivera and two others in a street encounter. Rivera challenged and then attacked Hewitt. Defendant produced a knife, and after menacing James Williams and slashing Clarence Crawford, stabbed Hewitt to death.
We find no merit to defendant's claim on appeal that he was deprived of a fair opportunity to present his defense. The case was advanced to trial on consent, and the decision to carry the case ready and passed for several days was not an abuse of discretion (People v Spears, 64 N.Y.2d 698, 699-700). Counsel did not tell the court that his missing witness, who was involved with drugs and outside the jurisdiction, would give material testimony. (Matter of Anthony M., 63 N.Y.2d 270, 283-284; People v Foy, 32 N.Y.2d 473.) Further, trial counsel did not move for an adjournment during the course of the trial or alert the court to the fact, revealed at sentencing, that the missing witness was one of the persons involved in the altercation.
Defendant's claim that the prosecutor appealed to the jury's passion on summation is unpreserved. Were we to reach the issue in the interest of justice, we would find it lacking in merit.
The issues raised in defendant's pro se supplemental brief do not warrant reversal. His conviction for murder in the second degree was established beyond a reasonable doubt, and his claim that trial counsel was ineffective is not founded on matter appearing in the record on appeal. (People v Jones, 55 N.Y.2d 771; People v Brown, 45 N.Y.2d 852.)
Concur — Ellerin, J.P., Wallach, Kupferman, Asch and Kassal, JJ.