People v. Davis

194 A.D.2d 437, 598 N.Y.S.2d 531, 1993 N.Y. App. Div. LEXIS 6278

Opinion

—Judgment, Supreme Court, New York County (Richard Failla, J.), rendered June 10, 1991, convicting defendant, after jury trial, of one count of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 9 to 18 years and 6 to 12 years, respectively, to run consecutively to another term of 6 to 12 years, unanimously affirmed.

Defendant’s participation with codefendant in two violent muggings was established by overwhelming evidence. Defendant’s bolstering claims are unpreserved for review as a matter of law (People v Gonzalez, 55 NY2d 720, 722, cert denied 456 US 1010), and we decline to review in the interest of justice. If we were to review, we would find that even if the officer’s testimony that codefendant "fit the description” did implicitly bolster the eyewitness identification, such was harmless in view of the overwhelming evidence of guilt. Concerning defendant’s absence from the charge conference, the record clearly shows that his attorney, in his presence, specifically waived his right to be present thereat, that defendant acknowledged this waiver, and that the court, both at the time of the waiver as well as prior to the conference, specifically stated, without objection, that defendant had personally waived his right to be present. In other words, there was a knowing, voluntary and intelligent waiver of the right to be present (see, e.g., People v Martinez, 179 AD2d 519, 520, lv denied 79 NY2d 1003; People v Peterson, 151 AD2d 512). Defendant’s remaining contentions, to the extent preserved, are without merit. Concur—Sullivan, J. P., Ellerin, Kupferman, Ross and Asch, JJ.