People v. Jones ( 1992 )

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered May 2, 1990, convicting defendant, after a jury trial, of robbery in the first degree and sodomy in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 14 years to life, unanimously affirmed.

Viewing the evidence in the light most favorable to the People (People v Malizia, 62 NY2d 755, cert denied 469 US 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 NY2d 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 NY2d 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 [2]), 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 NY2d 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.