People v. Paul

288 A.D.2d 139, 732 N.Y.S.2d 861, 2001 N.Y. App. Div. LEXIS 11446

Opinion

—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 20, 1999, convicting defendant, after a jury trial, of robbery in the first degree, burglary in the second degree and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, 16 years to life, and one year, respectively, unanimously affirmed.

Defendant’s request for a missing witness charge was properly denied since there was no showing that the witness would have provided testimony concerning a material issue (see, People v Gonzalez, 68 NY2d 424, 427-428). In any event, were we to find any error in this regard, we would find it to be harmless.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (People v Rosen, 96 NY2d 329, cert denied — US —, 122 S Ct 224). Concur — Rosenberger, J. P., Tom, Rubin, Buckley and Marlow, JJ.