Opinion
KA 97-05362
May 3, 2002.
Appeal from a judgment of Monroe County Court (Smith, J.), entered June 9, 1997, convicting defendant after a jury trial of, inter alia, robbery in the first degree (four counts).
LOUIS P. PILATO, ROCHESTER, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (LORETTA S. COURTNEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, KEHOE, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of four counts of robbery in the first degree (Penal Law § 160.15, [4]) and two counts of grand larceny in the fourth degree (§ 155.30 [5]), defendant contends that he was denied his right to be present at "vital stages of the proceeding" because he was not present during various sidebar conferences. We reject that contention. Defense counsel, in defendant's presence, repeatedly waived defendant's right to attend sidebar conferences conducted during voir dire and at trial ( see People v. Keen, 94 N.Y.2d 533, 538-539; People v. Blunt, 280 A.D.2d 956, lv denied 96 N.Y.2d 826; People v. Bestman, 262 A.D.2d 567). Thus, there is no basis on this record for concluding that defendant was deprived of his right to be present at any material stage of the proceeding ( see People v. Owens, 275 A.D.2d 905; see generally People v. Antommarchi, 80 N.Y.2d 247, 250, rearg denied 81 N.Y.2d 759; People v. Dokes, 79 N.Y.2d 656, 659-660).
Contrary to defendant's further contention, the evidence is legally sufficient to establish defendant's identity as one of the robbers ( see People v. Ruttlen, 289 A.D.2d 1061; People v. Casillas, 289 A.D.2d 1063), and the verdict is not against the weight of the evidence on the issue of identification ( see People v. Bleakley, 69 N.Y.2d 490, 495; People v. Gray, 278 A.D.2d 833, lv denied 97 N.Y.2d 656; Owens, 275 A.D.2d at 906).
County Court did not err in allowing the People to include in the photo array a photograph of defendant that was obtained as the result of an allegedly illegal arrest. The hearing testimony establishes that the police had probable cause to arrest defendant. Thus, they were lawfully in possession of defendant's mug shot and did not violate the Fourth Amendment in showing it to one of the victims. Nor did the court err in denying defendant's motion to suppress the identification testimony of that victim. The victim's identification testimony was not shown to be tainted by any unnecessarily suggestive procedure and, in any event, the court properly determined that the victim had an independent basis for his in-court identification of defendant ( see People v. Grimes, 289 A.D.2d 1072; People v. Beltran, 281 A.D.2d 934, 935, lv denied 96 N.Y.2d 898).
Finally, the court properly denied defendant's CPL article 330 motion on the ground that it was improperly based on matters outside the record ( see CPL 330.30; People v. Vann, 288 A.D.2d 876, 877, lv denied 97 N.Y.2d 709; People v. Lasso, 268 A.D.2d 313, lv denied 94 N.Y.2d 922). Contrary to defendant's further contention, the court had no obligation to convert the motion to one pursuant to CPL article 440. Indeed, a CPL article 440 motion would have been premature because a judgment of conviction had not yet been entered ( see 440.10 [1]; People v. Bailey, 275 A.D.2d 663, 664, lv denied 95 N.Y.2d 960).