PEOPLE v. OWENS

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

The PEOPLE of the State of New York, Respondent, v. Terry OWENS, Defendant-Appellant.

Decided: January 16, 1997

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, WILLIAMS and ANDRIAS, JJ. Gina M. Mignola, for Respondent. Edward J. Ungvarsky, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered June 23, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, 8 years to life, and 6 years to life, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the second-degree weapon possession conviction to a term of 20 years to life and otherwise affirmed.

 Defendant's claim that the prosecutor's explanations for the exercise of certain peremptory challenges were pretextual is unpreserved (People v. Rivera, 225 A.D.2d 392, 640 N.Y.S.2d 483, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355).   Were we to review this claim in the interest of justice, we would find that the record supports the trial court's implicit finding (see, People v. Chipp, 75 N.Y.2d 327, 329, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70) that the prosecutor's race-neutral explanations were non-pretextual.   The prosecutor manifestly did not engage in disparate treatment of similarly situated venirepersons.   Since defendant did not request that the voir dire be recorded, his present claim in that regard is likewise unpreserved.   In any event, the available record is sufficient for appellate review of defendant's claim (see, People v. Harrison, 85 N.Y.2d 794, 628 N.Y.S.2d 939, 652 N.E.2d 638).

 Defendant's right to be present at a material stage of his trial was not implicated by his exclusion from a material witness conference (People v. Lovett, 192 A.D.2d 326, 595 N.Y.S.2d 476, lv. denied 82 N.Y.2d 722, 602 N.Y.S.2d 819, 622 N.E.2d 320).   Since defendant never requested access to the appropriately sealed minutes of the hearing, his present claim that he was entitled to such access for impeachment purposes is unpreserved (see, People v. Lopez, 160 A.D.2d 565, 566, 554 N.Y.S.2d 213, lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 1000, 561 N.E.2d 900).

 We find the sentence on the second-degree weapon possession conviction excessive to the extent indicated.

MEMORANDUM DECISION.