Opinion
1744
October 7, 2003.
Judgment, Supreme Court, New York County (Lewis Stone, J.), rendered January 16, 2001, convicting defendant, after a jury trial, of robbery in the second degree and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.
Frank Glaser, for respondent.
Andrew R. Polland, for defendant-appellant.
Before: Saxe, J.P., Sullivan, Williams, Lerner, Friedman, JJ.
Defendant's various severance motions were properly denied, and he was not deprived of his right to testify. The defenses of defendant and the codefendant were not irreconcilable (see People v. Mahboubian, 74 N.Y.2d 174, 184), and we note that defendant did not renew his severance motion following the codefendant's testimony. Similarly, defendant did not establish his entitlement to severance on the ground that, had he testified, he would have been subjected to prejudicial cross-examination by the codefendant (see People v. Sanders, 162 A.D.2d 327, lv denied 76 N.Y.2d 944; see also People v. Roman, 303 A.D.2d 176, lv denied 100 N.Y.2d 565; compare People v. McGee, 68 N.Y.2d 328, 333-334). At no stage of the proceedings has defendant established that his potential testimony would have given the codefendant an incentive to impeach his credibility.
Defendant was not deprived of a fair trial or of his right to testify in his own defense by the court's refusal to provide an advance ruling delineating what would "open the door" to permit the People to impeach him with previously suppressed evidence ( see People v. Ardito, 231 A.D.2d 116, lv denied 91 N.Y.2d 923).
Although in a supplemental instruction to the deliberating jury, the court referred to the trial as a search for the truth, that instruction, taken as a whole and in the context of the court's main charge, properly explained the People's burden of proving defendant's guilt beyond a reasonable doubt ( see People v. Slacks, 90 N.Y.2d 850).
In this case involving the robbery of an undercover officer who had been attempting to purchase drugs, the People made a sufficient showing to warrant closure of the courtroom to the public during the testimony of one of the undercover officers (see People v. Ramos, 90 N.Y.2d 490, cert denied sub nom. Ayala v. New York, 522 U.S. 1002; People v. Cardena, 293 A.D.2d 355, lv denied 98 N.Y.2d 673).
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 ( see People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899).
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.