Opinion
KA 01-00425
July 3, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered May 29, 1998, which was held by this Court on February 1, 2002, the decision was reserved and the matter was remitted to Supreme Court for further proceedings in accordance with the Memorandum ( 291 A.D.2d 856), and said proceedings having been had and terminated.
FERO, PILATO INGERSOLL, ROCHESTER (LOUIS P. PILATO OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
We previously held this case, reserved decision and remitted the matter to Supreme Court for a reconstruction hearing to determine whether defendant waived his right to be present during certain sidebar discussions with prospective jurors and bench conferences between the prosecutor, defense counsel and the court; to determine what rulings were made regarding the service of each prospective juror at those sidebar discussions; and to determine whether defendant's presence was required at those bench conferences ( People v. Anderson, 291 A.D.2d 856). The record of the reconstruction hearing supports the court's determination that there was no violation of defendant's right to be present at any material stage of the trial ( see CPL 260.20; People v. Roman, 88 N.Y.2d 18, 25-26, rearg denied 88 N.Y.2d 920). The People proved by a preponderance of the evidence that, with one exception, defendant waived his right to be present at all sidebar discussions with prospective jurors and all bench conferences between the prosecutor, defense counsel and the court ( see People v DeJesus, 272 A.D.2d 61, 62-63, lv denied 95 N.Y.2d 962; see generally People v. Lucious, 285 A.D.2d 968, 969, lv denied 97 N.Y.2d 657). The single exception involved a bench conference resulting in the disqualification for cause of a prospective juror. "Disqualification of [that prospective juror] was a decision for the trial court to make after hearing argument, if any, by counsel, at which defendant could not have made any meaningful contribution" ( Roman, 88 N.Y.2d at 28). We have considered defendant's remaining contentions and conclude that they are lacking in merit.