Opinion
December 10, 1992
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Viewing the evidence in the light most favorable to the People (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), it was legally sufficient to convict defendant of robbery in the first degree and sodomy in the first degree, and the verdict was not against the weight of the evidence (People v Bleakley, 69 N.Y.2d 490). Defendant's argument that he was denied due process by the denial of his request to call the complainant at the Wade hearing fails to demonstrate some indicia of suggestiveness of the identification procedures employed and is thus without merit (People v Peterkin, 75 N.Y.2d 985). Defendant's argument that the court improperly admitted evidence of the complainant's physical and mental condition after he was robbed and sodomized is unpreserved for appellate review (CPL 470.05), and, in any event, without merit, since the evidence was offered not to arouse the emotions of the jury and to prejudice defendant but to prove that the complainant had been sexually assaulted (see, People v Pobliner, 32 N.Y.2d 356, 369-370). Finally, the court did not err in properly determining that defendant's prior plea to attempted criminal possession of a weapon in the third degree constitutes a violent felony under Penal Law § 70.02 (1) (d) and that defendant should therefore be sentenced as a persistent violent felony offender.
Concur — Milonas, J.P., Wallach, Asch and Rubin, JJ.