Opinion
June 14, 1993
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the judgment is affirmed.
The defendant was convicted of the rape and assault of his former wife. Although the defendant was arrested in his home without a warrant, his consent to the entry of the police vitiated any violation of the rule of Payton v. New York ( 445 U.S. 573; see also, People v. Levan, 62 N.Y.2d 139; People v. Adams, 53 N.Y.2d 1, cert denied 454 U.S. 854). Further, the court correctly found that the defendant knowingly and voluntarily waived his Miranda rights before giving any statements to the police (see, People v. Maerling, 64 N.Y.2d 134; People v. Ricco, 56 N.Y.2d 320) and did not improvidently exercise its discretion in rendering its Sandoval ruling (see, People v. Pavao, 59 N.Y.2d 282; People v. Sandoval, 34 N.Y.2d 371; People v. Dupree, 157 A.D.2d 847; People v. Taylor, 135 A.D.2d 848). Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The trial court properly exercised its discretion in sentencing the defendant as a persistent felony offender (see, CPL 400.20; Penal Law § 70.10; People v. Sailor, 65 N.Y.2d 224, cert denied 474 U.S. 982; People v. Drummond, 104 A.D.2d 825) and we decline to modify the sentence as a matter of discretion (see, People v. Delgado, 80 N.Y.2d 780; People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either not preserved for appellate review or without merit. Mangano, P.J., O'Brien, Ritter and Pizzuto, JJ., concur.