People v. Rieman , 153 A.D.2d 984 ( 1989 )

Casey, J.

Appeal from a judgment of the Supreme Court (Crew, III, J.), rendered August 10, 1987 in Chemung County, convicting defendant upon his plea of guilty of the crime of escape in the first degree.

On this appeal, defendant initially claims that the sentence of 2 Vx to 5 years’ imprisonment that he received as a second felony offender on his negotiated plea of guilty of the crime of escape in the first degree is invalid because the predicate felony conviction was obtained in violation of his constitutional rights. This court has already considered this issue and decided it against defendant on his appeal from the denial of his CPL 440.10 motion to set the predicate felony conviction aside (People v Rieman, 144 AD2d 110, 111).

There remains, therefore, only defendant’s claim that his judgment of conviction here on appeal should be reversed because the prosecution did not appear at the time of his sentencing. At that time, defendant received the sentence that he had been promised. Since there is no statutory requirement that the prosecution appear at sentencing, and since defendant has demonstrated no prejudice as a result of the prosecution’s nonappearance, defendant’s judgment of conviction should be affirmed.

Judgment affirmed. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.