PEOPLE v. FERGUSON

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

The PEOPLE, etc., respondent, v. Alden FERGUSON, appellant.

Decided: January 27, 2009

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and RANDALL T. ENG, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Marie-Claude P. Wrenn-Myers of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered August 17, 1995, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contentions, he knowingly and voluntarily waived his right to be present for the second day of voir dire after being warned of the consequences of his refusal to return to the courtroom in accordance with the standards enunciated in People v. Parker, 57 N.Y.2d 136, 140-141, 454 N.Y.S.2d 967, 440 N.E.2d 1313.   Accordingly, the Supreme Court properly completed jury selection in his absence (see People v. Severino, 44 A.D.3d 1077, 1078, 844 N.Y.S.2d 391;  People v. Rosas, 34 A.D.3d 605, 605, 823 N.Y.S.2d 684;  People v. Ciccarello, 276 A.D.2d 637, 637, 714 N.Y.S.2d 695;  People v. Myers, 215 A.D.2d 595, 596, 626 N.Y.S.2d 852).

 The defendant's contention that his adjudication as a persistent violent felony offender violated his right to a jury trial is unpreserved for appellate review (see People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844;  People v. David B., 14 A.D.3d 617, 618, 787 N.Y.S.2d 896).   In any event, as the defendant's sentence was enhanced solely based upon his recidivism (see Penal Law § 70.08[1][a] ), he was not entitled to a jury trial to determine the facts underlying his prior felony convictions (see People v. Myers, 33 A.D.3d 822, 822-823, 826 N.Y.S.2d 284;  People v. Highsmith, 21 A.D.3d 1037, 1038-1039, 801 N.Y.S.2d 355).

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