Opinion
April 29, 1998
Appeal from Judgment of Cayuga County Court, Corning, J. — Burglary, 1st Degree.
Present — Green, J.P., Pine, Hayes, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly permitted complainant to identify defendant in court. The record supports the court's conclusion that, although the photo array shown to complainant was unduly suggestive, he had an independent basis for his in-court identification of defendant (see, People v. Bostic, 222 A.D.2d 1073, 1074, lv denied 88 N.Y.2d 876; People v. Greer, 173 A.D.2d 557, 557-558, lv denied 78 N.Y.2d 1011). The court also properly permitted defendant to proceed pro se at trial. "Defendant unequivocally exercised his right to self-representation, his waiver of counsel was knowing and intelligent (People v. McIntyre, 36 N.Y.2d 10, 14), and the court undertook `a sufficiently "searching inquiry" of the defendant to be reasonably certain that the "dangers and disadvantages" of giving up the fundamental right to counsel [had] been impressed on the defendant' (People v. Sawyer, 57 N.Y.2d 12, 21, rearg dismissed 57 N.Y.2d 776, cert denied 459 U.S. 1178)" (People v. Walker, 140 A.D.2d 929, lv denied 72 N.Y.2d 962). Defendant's contention that testimony regarding a prior weapons charge was improperly admitted is not preserved for our review (see, CPL 470.05; People v. Okon, 184 A.D.2d 664), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). The sentence imposed is not unduly harsh or severe.