People v. Bates 124 A.D.2d 994

Memorandum: Defendant’s claim that he was improperly sentenced as a second violent felony offender (see, Penal Law § 70.04) is without merit. Although there is some confusion in the record, it is clear from the court’s comments at sentencing and the certificate of conviction that defendant was sentenced as a second felony offender (see, Penal Law § 70.06). Where, as here, a defendant voluntarily admits his prior felony conviction and was aware that he was about to face an enhanced sentence, he is estopped from attacking the validity of a sentence imposed under Penal Law § 70.06 (People v Ryan, 50 AD2d 1078, appeal dismissed 40 NY2d 988). We do not find the sentence imposed under the circumstances to be unduly harsh or excessive. Defendant’s claims of prosecutorial misconduct and that the victim’s identification testimony was impermissibly bolstered (see, People v Trowbridge, 305 NY2d 471) *995were not properly preserved for appellate review and, in any event, were harmless in this nonjury trial (see, People v Johnson, 57 NY2d 969, 970; People v Mobley, 56 NY2d 584, 585; People v Crimmins, 36 NY2d 230; People v Richards, 116 AD2d 1008, 1009). (Appeal from judgment of Supreme Court, Erie County, Francis, J. — rape, first degree, and sodomy, first degree.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.