PEOPLE v. CONWAY (2000)

Defendant was convicted following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) based upon his having struck his girlfriend numerous times in the head with a hammer while she was lying in bed in her apartment.   Defendant was sentenced as a second felony offender to a determinate term of imprisonment of 25 years.

 We reject the contention of defendant that Supreme Court erred in denying his suppression motion.   The court credited the testimony of the victim that defendant did not live with her, but merely stayed overnight occasionally and kept a few personal items at the victim's residence, to which he did not have a key.   Thus, the court properly determined that defendant lacked standing to contest the warrantless search of the victim's apartment and garage (see, People v. McGaha, 144 A.D.2d 388, 533 N.Y.S.2d 931;  see also, People v. Secrest, 236 A.D.2d 839, 654 N.Y.S.2d 223, lv. denied 90 N.Y.2d 863, 661 N.Y.S.2d 190, 683 N.E.2d 1064;  People v. Adames, 168 A.D.2d 623, 563 N.Y.S.2d 462, lv. denied 77 N.Y.2d 957, 570 N.Y.S.2d 491, 573 N.E.2d 579).   In any event, the victim consented to the search of the garage (see, People v. Maye, 206 A.D.2d 755, 757, 615 N.Y.S.2d 94, lv. denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463).

 Two isolated improper comments during the prosecutor's summation, wherein the prosecutor vouched for the credibility of a witness and appealed to the sympathy of the jury, did not deprive defendant of a fair trial (cf., People v. Calabria, 94 N.Y.2d 519, 523, 706 N.Y.S.2d 691, 727 N.E.2d 1245).   Defendant failed to preserve for our review his contention that the court abused its discretion in failing to complete a readback of testimony requested by the jury before the jury reached a verdict (see, CPL 470.05[2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).   Defendant knowingly, intelligently and voluntarily waived his right to be present at sidebar conferences, as evidenced by the written waiver signed by defendant, defense counsel, and the court (see generally, People v. Spotford, 85 N.Y.2d 593, 598-599, 627 N.Y.S.2d 295, 650 N.E.2d 1296).   The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Given the heinous nature of the attack and defendant's violent criminal history, the sentence is neither unduly harsh nor severe.   We have examined the remaining contentions in defendant's pro se supplemental brief and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: