Opinion
November 10, 1986
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claim that he was improperly sentenced as a second violent felony offender (see, Penal Law § 70.04) is without merit. Although there is some confusion in the record, it is clear from the court's comments at sentencing and the certificate of conviction that defendant was sentenced as a second felony offender (see, Penal Law § 70.06). Where, as here, a defendant voluntarily admits his prior felony conviction and was aware that he was about to face an enhanced sentence, he is estopped from attacking the validity of a sentence imposed under Penal Law § 70.06 (People v Ryan, 50 A.D.2d 1078, appeal dismissed 40 N.Y.2d 988). We do not find the sentence imposed under the circumstances to be unduly harsh or excessive. Defendant's claims of prosecutorial misconduct and that the victim's identification testimony was impermissibly bolstered (see, People v Trowbridge, 305 N.Y.2d 471)
were not properly preserved for appellate review and, in any event, were harmless in this nonjury trial (see, People v Johnson, 57 N.Y.2d 969, 970; People v Mobley, 56 N.Y.2d 584, 585; People v Crimmins, 36 N.Y.2d 230; People v Richards, 116 A.D.2d 1008, 1009).