
    The People of the State of New York, Respondent, v Abdolhosein Baghai-Kermani, Appellant.
    [612 NYS2d 38]
   Judgment, Supreme Court, New York County (Stephen Crane, J.), rendered June 10, 1992, as modified by the order of this Court, entered December 7, 1993, convicting defendant, after a nonjury trial, of eight counts of criminal sale of a prescription for a controlled substance, and sentencing him to concurrent terms of 1 to 5 years and a fine of $10,000 on each count, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

We previously considered defendant’s Rosario claims (199 AD2d 36, lv denied 82 NY2d 921), and find no basis to disturb our prior ruling. Defendant’s contention that he was denied effective assistance of counsel is without merit since defendant should not be heard to complain about the consequences of his clearly knowing, intelligent, and voluntary election to proceed pro se.

In respect to the claim of severity of the sentence, based upon defendant’s allegations of post-sentencing discovery of a terminal illness, defendant’s allegations are entirely conclusory. While the People concede that defendant appears to have a brain tumor, no current information is provided about whether the tumor is malignant, whether defendant sought or received the surgery his own physician had recommended, and, if so, the outcome, and whether defendant’s seizures have been prevented by medication. Defendant, a physician himself, in fact fails to provide any factually supportable allegations concerning his present condition and prognosis, which allegations, moreover, should have been presented in the first instance to Supreme Court. Concur—Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.  