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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Chris C. FEWELL, also known as Chris Sawyer, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree (Penal Law § 130.35[1] ) and criminal sexual act in the first degree (§ 130.50[1] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and, in any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We also reject defendant's contention that the verdict is against the weight of the evidence (see generally id.).

 Contrary to the contention of defendant, the photo array from which the victim identified him was not unduly suggestive.   Although we conclude upon review of a copy of the photo array that defendant appears to have a lighter skin tone than the other black males portrayed in the photo array, the record establishes that the victim was instructed that the photographs in the array “may not depict the true complexion of a person.”   Moreover, it is well established that “differences in skin tone alone will not render a lineup unduly suggestive” (People v. Pointer, 253 A.D.2d 500, 500, 677 N.Y.S.2d 582, lv. denied 92 N.Y.2d 1037, 684 N.Y.S.2d 502, 707 N.E.2d 457;  see People v. Quinones, 5 A.D.3d 1093, 773 N.Y.S.2d 671, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207).   In any event, because there was no issue at trial concerning defendant's identity, any error in County Court's suppression ruling with respect to the photo array is harmless (see People v. Travison, 46 N.Y.2d 758, 760, 413 N.Y.S.2d 648, 386 N.E.2d 256, cert. denied 441 U.S. 949, 99 S.Ct. 2174, 60 L.Ed.2d 1053).

 Contrary to the further contention of defendant, the court did not err in refusing to compel the victim to furnish a handwriting exemplar to enable defendant's handwriting analyst to compare the victim's handwriting with a note that, according to defendant but denied by the victim, was given to him by the victim.   Defendant's motion seeking that relief was supported only by defense counsel's affirmation, and thus defendant failed to provide any evidence establishing a reasonable probability that the note had been written by the victim (see generally People v. Calamia, 169 Misc.2d 1054, 1056-1057, 648 N.Y.S.2d 226).

 We reject the further contention of defendant that his waiver of the right to be present during jury selection pursuant to CPL 260.20 was insufficient.   The record does not support the contention of defendant that he was excluded from a sidebar conference with a prospective juror, and, in any event, the court informed defendant that he had the right to be present at bench conferences and could exercise that right.   Under those circumstances, “defendant's failure to attend the sidebar conferences after being fully informed of the right to do so constitutes a valid waiver of that right” (People v. Inskeep, 272 A.D.2d 966, 966, 708 N.Y.S.2d 784, lv. denied 95 N.Y.2d 866, 715 N.Y.S.2d 221, 738 N.E.2d 369).   We further conclude that defendant received meaningful representation, and thus was not deprived of effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant failed to preserve for our review his contention that the prosecutor's comments on summation deprived him of a fair trial and, in any event, defendant's contention lacks merit (see generally People v. Spruill, 5 A.D.3d 318, 320, 775 N.Y.S.2d 249, lv. denied 3 N.Y.3d 648, 782 N.Y.S.2d 419, 816 N.E.2d 209;  People v. Crump, 254 A.D.2d 742, 742-743, 680 N.Y.S.2d 765, lv. denied 92 N.Y.2d 1030, 684 N.Y.S.2d 495, 707 N.E.2d 450, 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099;  People v. Chislum, 244 A.D.2d 944, 665 N.Y.S.2d 183, lv. denied 91 N.Y.2d 924, 670 N.Y.S.2d 406, 693 N.E.2d 753).

The record of the hearing on defendant's motion to suppress the testimony of a jail inmate concerning admissions made to him by defendant fully supports the court's conclusion that the inmate was not acting as an agent of law enforcement authorities at the time of his conversation with defendant, and thus the court properly denied defendant's motion to suppress the jail inmate's testimony (see People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306;  People v. Keith, 23 A.D.3d 1133, 1134, 804 N.Y.S.2d 206, lv. denied 6 N.Y.3d 815, 812 N.Y.S.2d 454, 845 N.E.2d 1285;  cf. Massiah v. United States, 377 U.S. 201, 205-207, 84 S.Ct. 1199, 12 L.Ed.2d 246).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.