Opinion
September 28, 1998
Appeal from the County Court, Westchester County (Smith, J.).
Ordered that the judgment is affirmed.
The Trial Judge's ex parte conversation with the defendant was improper. However, her refusal to recuse herself was not an improvident exercise of discretion as there is no showing of any prejudice or bias resulting from that conversation which affected the outcome of the case ( see, People v. Moreno, 70 N.Y.2d 403; People v. Judkins, 210 A.D.2d 523; People v. Brunner, 182 A.D.2d 1123; Matter of Johnson v. Hornblass, 93 A.D.2d 732).
The trial court did not improvidently exercise its discretion in denying the defendant's belated request for an adjournment in order to secure the attendance of a witness. The application, made after the prosecution and defense had rested, was untimely and the defendant did not act diligently in seeking to secure the witness's attendance ( see, People v. Singleton, 41 N.Y.2d 402; People v. Foy, 32 N.Y.2d 473, 478).
The defendant's contention that the court erred in instructing the jury on flight as consciousness of guilt is unpreserved for appellate review ( see, CPL 470.05; People v. Elias, 226 A.D.2d 474). In any event, there was sufficient evidence of flight to warrant giving the instruction to the jury ( see, People v. Exum, 208 A.D.2d 557).
Bracken, J.P., Ritter, Altman and McGinity, JJ., concur.