PEOPLE v. MARKLAND

Ordered that the judgment is affirmed.

Contrary to the People's argument, "the evidence is insufficient to support the conclusion" that the defendant knowingly and intelligently agreed to waive his right to review of the denial of his suppression motion and the allegedly excessive sentence (People v. Bray, 154 A.D.2d 692, 694). Nevertheless, upon a review of the record, we conclude that the prosecution proved by clear and convincing evidence that the in-court identification of the defendant was based on independent observations (People v. Rahming, 26 N.Y.2d 411, 416; People v Jones, 125 A.D.2d 494).

We have reviewed the defendant's remaining argument, and find it to be without merit (People v. Kazepis, 101 A.D.2d 816). Mangano, P.J., Bracken, Pizzuto and Santucci, JJ., concur.