Opinion
2269, M-5905
November 19, 2002.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered January 18, 2000, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
ALICE WISEMAN, for respondent.
JOHN GEMMILL, for defendant-appellant.
Before: Tom, J.P., Andrias, Saxe, Rubin, Friedman, JJ.
Defendant was properly permitted to represent himself at his suppression hearing. The record, as expanded, establishes that defendant had been warned of the risks and disadvantages of proceeding pro se and that his waiver of his right to counsel was voluntary and intelligent (see People v. Hayes, 293 A.D.2d 393; People v. Peterson, 273 A.D.2d 88;People v. Whitted, 113 A.D.2d 454, lv denied 67 N.Y.2d 952).
Defendant's claim that the court should have delivered an expanded identification charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court sufficiently instructed the jury on the issue of identification (see People v. Knight, 87 N.Y.2d 873; People v. Whalen, 59 N.Y.2d 273), particularly since defendant's principal theory throughout the case was that he was framed by the prosecutor's office, not that he was misidentified (see People v. Calderon, 185 A.D.2d 853, lv denied 80 N.Y.2d 973).
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899, 122 S.Ct. 224).
Motion seeking leave to file pro se supplemental brief and for other related relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.