People v Derek Josey

People v Josey 2004 NY Slip Op 01408 [5 AD3d 398] March 1, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

The People of the State of New York, Respondent,
v
Derek Josey, Appellant.

—

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered September 6, 2001, convicting him of assault in the second degree and escape in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court committed reversible error by holding a preliminary Sandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]) in his absence. However, this claim is without merit since the defendant forfeited his right to be present at such proceeding by his deliberate refusal to appear (see People v Sanchez, 65 NY2d 436 [1985]). This claim is also without merit since the trial court modified its Sandoval ruling after conducting a formal Sandoval hearing upon the defendant's return to the courtroom.

The defendant's challenge to the legal sufficiency of his assault conviction is unpreserved for appellate review (see CPL 470.05 [2]), and in any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), is without merit. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant's challenge to the sentence enhancement provisions for discretionary persistent felony offenders set forth in Penal Law § 70.10 and CPL 400.20 is also unpreserved for appellate review (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). S. Miller, J.P., Luciano, Adams and Cozier, JJ., concur.