People v Diagouraga (Toumani)

[*1] People v Diagouraga (Toumani) 2013 NY Slip Op 50578(U) Decided on April 11, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570613/11.

The People of the State of New York, Respondent, - -

against

Toumani Diagouraga, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo, J.H.O.), rendered July 27, 2011, after a nonjury trial, convicting him of violating Public Health Law § 229 (two counts), and imposing sentence.

Per Curiam.

Judgment of conviction (John Cataldo, J.H.O.), rendered July 27, 2011, affirmed.

We find unavailing defendant's challenge to the facial sufficiency of the underlying informations. At the pleading stage, the sworn police allegations that defendant, at a specified time and location inside Central Park, "did ... have [a] pedicab in [the] crosswalk that obstructed" pedestrian crossing, and that defendant failed to comply with a posted sign prohibiting pedicabs from stopping or parking at that location, were "sufficiently evidentiary in character" (People v Allen, 92 NY2d 378, 385 [1998]) to establish prima facie defendant's violation of the New York City Parks and Recreation Department Rules specified in the informations (see 56 RCNY §§ 1-04[1][5], 1-03[c][2]).

Defendant's argument, raised in a footnote in his appellate brief, that the court erred in considering, and in ultimately convicting him of, lesser, uncharged offenses is unpreserved, and indeed has been affirmatively waived, inasmuch as defendant failed to make a timely objection with respect thereto (see CPL 300.50[1], People v Ford, 62 NY2d 275, 282-283 [1984]; People v Harris, 97 AD3d 1111, 1111 [2012], lv denied 19 NY3d 1026 [2012]; People v Crooks, 40 AD3d 542, 542-543 [2007]), lv denied 9 NY3d 874 [2007]). In the circumstances, and considering that defense counsel signaled his approval of the court's procedure on the record, review in the interest of justice, even if available, would be inappropriate (see People v Tarsia, 50 NY2d 1, 8-9 [1980]; People v Crooks, 4 AD3d at 543).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 11, 2013