Opinion
No. KA 07-01683.
March 20, 2009.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 27, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree and grand larceny in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L. CIANCIOSA OF COUNSEL), FOR RESPONDENT.
Present Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the third degree (Penal Law § 160.05) and grand larceny in the third degree (§ 155.35). Contrary to the contention of defendant, County Court properly refused to suppress tape-recorded statements that he made to his ex-wife. Although the People may not elicit incriminating statements from a defendant who is represented by counsel, "statements induced by nongovernmental entities, acting privately, do not fall within the ambit of this exclusionary rule" ( People v Velasquez, 68 NY2d 533, 537). Here, according to the evidence at the suppression hearing, defendant's ex-wife was not acting as an agent of the police, and her statements were not otherwise induced by governmental entities ( see id.; People v Jean, 13 AD3d 466, 467, lv denied 5 NY3d 764, 807; People v Shabani, 203 AD2d 142, lv denied 84 NY2d 832).
We further conclude that the court properly allowed a prosecution witness to testify with respect to her identification of defendant from a photo array. "Defendant opened the door to the testimony of that witness" by attacking the validity of the photo array during his opening statement ( People v Williams, 273 AD2d 824, 826, lv denied 95 NY2d 893). Furthermore, defendant was not denied effective assistance of counsel based on defense counsel's strategic attempt to discredit the pretrial identification of the witness by using the photo array ( see People v Ofield, 280 AD2d 978, lv denied 96 NY2d 832).
Contrary to the further contention of defendant, he has "no constitutional right to a jury trial to establish the facts of his prior felony convictions" ( People v Rosen, 96 NY2d 329, 335; see People v Rivera, 5 NY3d 61, 67, cert denied 546 US 984). Furthermore, we conclude that the court did not abuse its discretion in sentencing defendant as a persistent felony offender based upon defendant's criminal history ( see People v O'Connor, 6 AD3d 738, 740-741, lv denied 3 NY3d 645).