People v. Pepe

262 A.D.2d 7, 690 N.Y.S.2d 566, 1999 N.Y. App. Div. LEXIS 6149

Opinion

—Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a second felony offender, to a term of 6 years, unanimously affirmed.

The court properly exercised its discretion in precluding defendant from commenting on the People’s failure to call a witness and in instructing the jury not to speculate as to what testimony the witness might have given, since defendant did not establish any foundation for such a summation comment (see, People v Tankleff, 84 NY2d 992, 995).

The record establishes a valid waiver of defendant’s right to attend bench conferences during voir dire. Concur — Ellerin, P. J., Nardelli, Williams, Saxe and Friedman, JJ.