PEOPLE v. PEPE (1999)

Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a second felony offender, to a term of 6 years, unanimously affirmed.

The court properly exercised its discretion in precluding defendant from commenting on the People's failure to call a witness and in instructing the jury not to speculate as to what testimony the witness might have given, since defendant did not establish any foundation for such a summation comment (see, People v. Tankleff, 84 N.Y.2d 992, 995, 622 N.Y.S.2d 503, 646 N.E.2d 805).

The record establishes a valid waiver of defendant's right to attend bench conferences during voir dire.

MEMORANDUM DECISION.