People v. Gaston

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of robbery in the first degree (Penal Law § 160.15 [2]) following the reversal of his prior judgment of conviction and a retrial (People v Gaston, 244 AD2d 889). Contrary to defendant’s contention, County Court properly denied defendant’s oral motion for a Wade hearing prior to the retrial (see, People v Mezon, 80 NY2d 155, 157). Defendant did not renew the motion in writing, and thus the motion was abandoned (see, People v Vigliotti, 270 AD2d 904, lv denied 95 NY2d 839; see also, CPL 710.70 [3]). Defendant contends that, prior to the first trial, the court erred in failing *933to rule on his motion for a Wade hearing (see, CPL 710.40 [3]). Assuming, arguendo, that such an alleged error may be raised on an appeal from a conviction after a retrial, we note that defendant proceeded with the first trial without objection and thus “impliedly waived any objection to the failure to comply with CPL 710.40 [3]” (People v Olds, 269 AD2d 849). We reject defendant’s further contention that the sentence is illegal because it is more severe than the sentence imposed after the first trial. The court properly stated “the reason for doing so ‘based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” (People v Rice, 224 AD2d 972, lv denied 88 NY2d 883). (Appeal from Judgment of Monroe County Court, Dattilo, Jr., J. — Robbery, 1st Degree.) Present— Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.