Opinion
September 18, 1990
Appeal from the Supreme Court, Bronx County (Ira Globerman, J.).
These convictions arise out of the stabbing of an inmate at the Rikers Island Correctional Facility. Both defendants and a third inmate were observed by at least two correctional officers beating up a fellow inmate with what appeared to be an icepick-like weapon. During the disturbance, defendant Lewis was later observed striking the complainant's back with a "shank". The medical evidence revealed the complainant sustained a stab wound on the left side of his back and a collapsed lung as a result of the assault.
Viewing the evidence in the light most favorable to the People, defendants' guilt was proven beyond a reasonable doubt. (People v. Contes, 60 N.Y.2d 620.) The trier of fact is in the best position to observe the demeanor of the witnesses and assess their credibility. (People v. Mosley, 112 A.D.2d 812, 814, affd 67 N.Y.2d 985.) No basis to disturb the jury's findings appears on this record.
With respect to defendant Lewis' contention that the court erred in sentencing him as a persistent violent felony offender, the sentencing court properly concluded that Lewis' September 1983 attempted second degree robbery conviction, after a guilty plea, for which he was sentenced as a second violent felony offender, was entered into voluntarily and knowingly. (People v Gonzalez, 156 A.D.2d 135, lv denied 75 N.Y.2d 868.)
Defendant Lewis' unpreserved claim that he was denied his right of confrontation when, in his absence, the court heard legal argument from counsel on the production of medical records relating to the psychological state of mind of a prosecution witness, as well as a matter of cross-examination of a prosecution witness, is without merit. Defendant's absence during counsel's argument to the court did not affect any substantial right of defendant (see, People v. Ciaccio, 47 N.Y.2d 431) nor have a reasonably substantial relation to his opportunity to defend against the charges. (See, People v. Harris, 76 N.Y.2d 810. )
Lastly, no reasonable view of the evidence supports defendant Lewis' unpreserved claim that a justification charge (Penal Law § 35.15) was warranted. (See, People v. Reynoso, 73 N.Y.2d 816, 818; habeas corpus dismissed, Reynoso v. Leonardo, 735 F. Supp. 134.)
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.