Opinion
January 12, 1999.
Appeal from the Supreme Court, New York County (Bonnie Wittner, J.).
There was legally sufficient evidence of guilt and the verdict was not against the weight of the evidence. We see no reason to disturb the jury's determinations regarding the credibility and reliability of witnesses.
The trial court properly exercised its discretion in precluding defendant from calling a third alibi witness, since the defense concededly failed to give proper alibi notice pursuant to CPL 250.20 and since the People were deprived of the opportunity to conduct a proper investigation regarding any of the alibi testimony ( see, People v. Alvarez, 223 A.D.2d 401, lv denied 88 N.Y.2d 980).
Defendant's contention that the conditional examination of an incarcerated hospitalized witness in a communicable disease unit was conducted out of defendant's "presence" is unreviewable, defendant having failed to provide a sufficient record to establish that the special seating arrangements deprived him of the right to be present ( see, People v. Brown, 221 A.D.2d 160, lv denied 87 N.Y.2d 898). In any event, the existing record establishes that defendant waived his right to be situated in closer proximity to the witness and counsel.
On the existing record, which defendant has not sought to amplify by a motion pursuant to CPL 440.10, we conclude that defendant received meaningful representation. Counsel's alleged errors could not have deprived defendant of a fair trial ( People v. Benevento, 91 N.Y.2d 708, 713-714).
We perceive no abuse of sentencing discretion and conclude that the sentence was not based on any improper criteria.
We have reviewed and rejected defendant's remaining contentions.
Concur — Sullivan, J.P., Lerner, Mazzarelli and Saxe, JJ.