| People v Kelly |
| 2009 NY Slip Op 09254 [68 AD3d 895] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Kelly, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Walsh, J., atsentence; Heffernan, J., at hearing and trial), rendered September 26, 2006, convicting him ofrobbery in the first degree and burglary in the first degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
Following the suppression of the victim's lineup identification of the defendant, the Peopleestablished by clear and convincing evidence at an independent source hearing that the in-courtidentification of the defendant was based upon the witness's independent observation of thedefendant during the commission of the crime (see People v Marte, 12 NY3d 583, 586 [2009]; People v Adelman, 36 AD3d 926,927 [2007]; People v Ortiz, 7 AD3d544 [2004]; People v Radcliffe, 273 AD2d 483, 484 [2000]).
The defendant's contention that the trial court violated his constitutional right to a jury trialand the statutory mandate of CPL 310.10 that the jurors be continuously kept together is notpreserved for appellate review (see People v Ramon, 291 AD2d 511, 512 [2002];People v Johnson, 224 AD2d 635 [1996]). In any event, under the circumstances, therewas no violation of the defendant's rights (see People v Cabot, 294 AD2d 444, 445[2002]; People v Ramon, 291 AD2d at 512; People v Johnson, 224 AD2d 635[1996]).
The defendant's argument that the persistent violent felony offender sentencing schemeunder Penal Law § 70.08 violates the holding in Apprendi v New Jersey (530 US466 [2000]), is also unpreserved for appellate review (see CPL 470.05 [2]; People v Washington, 26 AD3d400 [2006]; People v Black, 23AD3d 490 [2005]) and, in any event, is without merit (see People v Rivera, 5 NY3d 61 [2005], cert denied 546US 984 [2005]; People v Winfield,63 AD3d 969, 970 [2009]; People vWells, 63 AD3d 967, 969 [2009]; People v Mitchell, 59 AD3d 739, 741 [2009]). Skelos, J.P., Eng,Belen and Austin, JJ., concur.