Summary
In People v Collucci (198 A.D.2d 825 [4th Dept 1993]) on direct appeal, the Court held the defendant was not entitled to a reconstruction hearing because the issue of whether the defendant was present or not was wholly superfluous as the defendant had testified at trial and there was no cross-examination with respect to any prior convictions or bad acts.
Summary of this case from People v. PowellOpinion
November 19, 1993
Appeal from the Onondaga County Court, Cunningham, J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of rape in the first degree, sexual abuse in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree, defendant contends that he did not knowingly and intelligently waive his right to a jury trial. That contention lacks merit (see, People v Burnett, 136 A.D.2d 888, lv denied 70 N.Y.2d 1004; see also, People v Simmons, 182 A.D.2d 1018; People v Watson, 162 A.D.2d 360, 361). Defendant is not entitled to reconstruction of the Sandoval hearing (see, People v Sandoval, 34 N.Y.2d 371). Even assuming that a Sandoval hearing was conducted, which the record does not disclose, defendant's presence would have been "wholly superfluous"; because defendant testified at trial and there was no cross-examination with respect to any prior convictions or bad acts, "it cannot reasonably be said that there was any potential for additional meaningful input by defendant" (People v Smith, 82 N.Y.2d 254, 268; see, People v Knowlin, 198 A.D.2d 873 [decided herewith]). The verdict with respect to rape in the first degree and assault in the second degree was not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). The court did not improperly restrict defendant's cross-examination of the chief prosecution witness, and defendant's sentence is not harsh or excessive. Defendant's remaining contentions are unpreserved for our review and we decline to reach them in the interest of justice.