Opinion
July 3, 1997
Appeal from the Orleans County Court, Punch, J.
Present — Green, J. P., Lawton, Doerr, Boehm and Fallon, JJ.
Reversal is not required, however, because admission of the illegally obtained evidence is harmless error. The proof of guilt is overwhelming, and there is no reasonable possibility that admission of the fruits of the illegal arrest contributed to the conviction ( see, People v. Williams, 78 A.D.2d 558, lv denied 52 N.Y.2d 839; see also, People v. Rivas, 214 A.D.2d 996, lv denied 86 N.Y.2d 801).
We reject the contention that defendant's right to be present at all material stages of the trial was violated when the court, with counsel present, conducted a hearing in defendant's absence on the possible disqualification of a sworn juror ( see, People v. Aguilera, 82 N.Y.2d 23, 34; People v. Torres, 80 N.Y.2d 944, 945, rearg denied 81 N.Y.2d 784; People v. Mardis, 190 A.D.2d 866, 867, lv denied 81 N.Y.2d 1076). The record does not support the further contention that defendant was denied his right to be present during the portion of voir dire conducted in chambers and at sidebar conferences with prospective jurors.
Defendant failed to preserve for our review his contentions that the court erroneously instructed the jury with respect to the burden of proof in its charge on reasonable doubt ( see, People v. Robinson, 88 N.Y.2d 1001, 1001-1002) and the alibi defense ( see, People v. Babis, 202 A.D.2d 601, lv denied 83 N.Y.2d 908; People v. Howard, 153 A.D.2d 903, 905). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). (Appeal from Judgment of Orleans County Court, Punch, J. — Robbery, 1st Degree.)