People v Tanner

People v Tanner 2009 NY Slip Op 08696 [67 AD3d 609] November 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Johnny Tanner, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), and Linklaters LLP, New York (Joshua D. Burns of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered December 4, 2007, as amended January 14, 2008, convicting defendant, after a jury trial, of seven counts each of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and sentencing him, as a second felony offender, to an aggregate term of 1½ to 3 years, unanimously affirmed.

The court properly granted defendant's application to represent himself. The record, taken as a whole (see People v Providence, 2 NY3d 579, 583 [2004]), establishes that defendant made a knowing and intelligent waiver of his right to counsel. The record does not support defendant's assertions that his request to proceed pro se may have been equivocal or the product of mental infirmity.

Defendant's claim that testimony concerning the contents of an erased videotape violated the best evidence rule is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]). Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ.