PEOPLE v. MENNER (2003)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brennan, J.), rendered February 14, 2002, convicting him of robbery in the first degree, robbery in the second degree, and assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that, after being removed from the courtroom, he was improperly excluded the next day when he would have exercised his right to testify.   On appeal, he does not challenge his removal on the prior day.   On the second day, when his lawyer inquired in the prison whether the defendant was willing to conduct himself properly and whether he wished to testify, he did not respond affirmatively and merely stated that he wanted to appear in the courtroom to fire his counsel.   Under these circumstances and in light of the disruption the defendant had caused the day before, the Supreme Court properly found that the defendant forfeited his right to be present, including his right to testify (see People v. Byrnes, 33 N.Y.2d 343, 349-350, 352 N.Y.S.2d 913, 308 N.E.2d 435).   In addition, we reject the defendant's contention that he was deprived of his constitutional right to testify on his own behalf because he did not personally waive that right on the record (see People v. Fratta, 83 N.Y.2d 771, 772, 610 N.Y.S.2d 947, 632 N.E.2d 1270).

 The verdict convicting the defendant of robbery in the first degree and assault in the second degree and acquitting him of criminal possession of a weapon in the fourth degree was not repugnant (see People v. Haymes, 34 N.Y.2d 639, 640, 355 N.Y.S.2d 376, 311 N.E.2d 509, cert. denied 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279;  People v. Anthony, 273 A.D.2d 246, 709 N.Y.S.2d 836;  People v. Holloway, 253 A.D.2d 767, 768, 677 N.Y.S.2d 489).

The defendant failed to preserve for appellate review his claim that the discretionary sentence enhancement provisions for persistent felony offenders set forth in Penal Law § 70.10 and CPL 400.20 violate the State and Federal constitutions (see People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160).