NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
November 24, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOHNNY TANNER, DEFENDANT-APPELLANT.
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 11/2 to 3 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Nardelli, Catterson, DeGrasse, Roman, JJ.
The court properly granted defendant's application to represent himself. The record, taken as a whole (see People v Providence, 2 NY3d 579, 583 ), 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 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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