People v. Miller , 623 N.Y.S.2d 672 ( 1995 )

—Judgment unanimously affirmed. Memorandum: The evidence is sufficient to support the conviction, and the conviction is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). County Court properly admitted the testimony of Lynn Wright. Wright denied that she and defendant were married, and defendant presented no proof that they were. Consequently, defendant was not entitled to invoke the marital privilege (see, CPLR 4502 [b]). The court did not err by admitting Wright’s prior testimony. Prior to the second trial, the People located Wright in California. She indicated that she was pregnant and that she would not return to New York until after the baby was born. In our view, the People made an adequate showing of due diligence to justify the admission of Wright’s prior testimony (see, People v Wiggins, 189 AD2d 908, Iv denied 81 NY2d 978). Moreover, because the prior testimony was given at a trial, at which Wright had been subjected to cross-examination, any prejudice to defendant from the admission of the testimony was minimized (see, People v Nettles, 118 AD2d 875, 876, Iv denied 68 NY2d 671).

Defendant failed to preserve for review his present argument that the first trial verdict was repugnant (see, People v Alfaro, 66 NY2d 985). Defendant was properly sentenced to consecutive terms of incarceration for his conviction of burglary in the second degree and grand larceny in the third degree (see, Penal Law § 70.25 [2]; People v Bariteau, 205 AD2d 880; People v Whiting, 182 AD2d 732, lv denied 80 NY2d 1030; People v Ninham, 174 AD2d 1043; People v Boyce, 133 AD2d 164; People v Ody, 13 AD2d 569, cert denied 368 US 858; People v Royster, 79 Misc 2d 275). (Appeal from Judgment of Herkimer County Court, Kirk, J.—Burglary, 2nd Degree.) Present—Green, J. P., Lawton, Doerr and Boehm, JJ.