Opinion
2001-08655.
Decided March 1, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered September 6, 2001, convicting him of assault in the second degree and escape in the first degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, Avemaria Thompson, and Joseph G. D'Arrigo of counsel), for respondent.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the trial court committed reversible error by holding a preliminary Sandoval hearing ( see People v. Sandoval, 34 N.Y.2d 371) in his absence. However, this claim is without merit since the defendant forfeited his right to be present at such proceeding by his deliberate refusal to appear ( see People v. Sanchez, 65 N.Y.2d 436). This claim is also without merit since the trial court modified its Sandoval ruling after conducting a formal Sandoval hearing upon the defendant's return to the courtroom.
The defendant's challenge to the legal sufficiency of his assault conviction is unpreserved for appellate review ( see CPL 470.05), and in any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), is without merit. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant's challenge to the sentence enhancement provisions for discretionary persistent felony offenders set forth in Penal Law § 70.10 and CPL 400.20 is also unpreserved for appellate review ( see People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899).
S. MILLER, J.P., LUCIANO, ADAMS and COZIER, JJ., concur.