People v. Gebrosky

181 A.D.2d 692, 581 N.Y.S.2d 216, 1992 N.Y. App. Div. LEXIS 3023

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Corriero, J.), rendered June 6, 1989, convicting him of attempted assault in the second degree and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the People failed to prove his guilt of attempted assault in the second degree beyond a reasonable doubt. Viewing the evidence adduced at trial in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

Further, we find that, under the facts of this case, the defendant’s absence from a portion of the Sandoval hearing did not prejudice him or affect his ability to defend and thus did not constitute a deprivation of due process (see, People v Velasco, 77 NY2d 469; People v Floyd, 179 AD2d 770; People v Dokes, 173 AD2d 724). The defendant was present when the court made its ruling. Also, although a dispute arose as to the nature of a prior conviction, the defendant was present for part of this discussion and the court prohibited the prosecutor from cross-examining the defendant as to this conviction. Thus, the defendant was not precluded from assisting in the resolution of the issues presented at the hearing (cf., People v Jenkins, 157 AD2d 854).

We have reviewed the defendant’s remaining contention and find it to be without merit (see, Penal Law § 70.25 [2]; People v Day, 73 NY2d 208; People v Oglesby, 128 Misc 2d 818). Bracken, J. P., Lawrence, Eiber and Miller, JJ., concur.