PEOPLE v. LEWIS

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

The PEOPLE of the State of New York, Respondent, v. Ralph LEWIS, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ. Timothy P. Donaher, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, burglary in the third degree (Penal Law § 140.20).   Contrary to the contention of defendant, Supreme Court did not abuse its discretion in conducting the trial and in sentencing him in absentia.   The record before us establishes that the court provided defendant with the requisite warnings pursuant to People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313, and the court also informed him that the trial would commence on a certain date.   Consequently, defendant waived his right to be present at trial and at sentencing by failing to appear at the appointed time or within a reasonable time thereafter (see People v. Jones, 31 A.D.3d 1193, 817 N.Y.S.2d 849, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144;  People v. Almonte, 210 A.D.2d 911, 620 N.Y.S.2d 661, lv. denied 85 N.Y.2d 859, 624 N.Y.S.2d 378, 648 N.E.2d 798).

 Contrary to the further contention of defendant, the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “Although defendant was tried in absentia and there was no opportunity to conduct an in-court identification, defendant's identity was established by the arresting officer, who testified that the person arrested was the perpetrator” (People v. Ortiz, 261 A.D.2d 102, 103, 690 N.Y.S.2d 192, lv. denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944).

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

MEMORANDUM: