The People of the State of New York, Respondent, v. Damian Brown, Appellant

The People of the State of New York, Respondent, v Damian Brown, Appellant. [732 NYS2d 155] [MAJORITY] Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered July 28, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years and 4 to 8 years, respectively, unanimously affirmed. Defendant’s generalized request to take the testimony of a suddenly hospitalized defense witness “by speaker phone, make some arrangements” failed to preserve his claim that the court should have conducted a conditional examination pursuant to CPL article 660, as well as his constitutional claim that he was deprived of his right to present a defense, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court properly exercised its discretion in denying defendant’s request, made on the last day of the trial, for such “arrangements.” The witness’s proposed testimony would have been cumulative to evidence presented by other defense witnesses (see, Matter of Anthony M., 63 NY2d 270, 283-284). Concur — Sullivan, P. J., Rosenberger, Nardelli, Rubin and Friedman, JJ.