People v Cvetkovski (Goce)

[*1] People v Cvetkovski (Goce) 2015 NY Slip Op 51379(U) Decided on September 29, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570357/08

The People of the State of New York, Respondent,

against

Goce Cvetkovski, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ellen M. Coin, J.), rendered April 4, 2008, after a jury trial, convicting him of resisting arrest and disorderly conduct, and imposing sentence.

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 AD2d 922, 923 [1993], lv denied 81 NY2d 886 [1993]). Here, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 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 AD2d 670 [1991], lv denied 79 NY2d 859 [1992]). Nor was the conviction against the weight of the evidence (see People v Bleakely, 69 NY2d 490, 495 [1987]).

The court properly exercised its discretion (see generally People v Foy, 32 NY2d 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 NY2d 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 AD2d 422, 423 [1993], lv denied 82 NY2d 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, [*2]295 AD2d 141 [2002], lv denied 98 NY2d 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 concurI concurI concur
Decision Date: September 29, 2015