Opinion
May 9, 1994
Appeal from the Supreme Court, Queens County (Robinson, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
While the defendant has a constitutional right to be present at any material stage of the trial, and proceedings where testimony is received are considered to be material stages, the defendant's presence is only required where his absence would have a substantial effect on his ability to defend (see, People v Turaine, 78 N.Y.2d 871; see also, People v. Mullen, 44 N.Y.2d 1, 5). Here, the absence of both the defendant and his counsel from an in-camera hearing, held by the trial court in order to determine whether the defendant and his companion had made threatening statements to one of the People's witnesses in an effort to coerce the witness to testify favorably for the defendant, did not have a substantial effect upon the defendant's ability to defend himself. Although the defense counsel knew that the in-camera hearing was occurring, he failed to object. Therefore, it may be implied that he did not consider the inquiry to have any prejudicial effect (see, People v. Harrison, 181 A.D.2d 743). Moreover, since the defense counsel was provided with a transcript of the testimony prior to cross-examining the witness, there was adequate opportunity to confront the witness. We further note that in the case at bar the outcome of the in-camera hearing was wholly favorable to the defendant (cf., People v. Turaine, supra; see also, People v. Harrison, supra, at 744).
Further, the defendant's claim of ineffective assistance of counsel is without merit. It is incumbent upon the defendant to demonstrate the absence of strategic or other legitimate explanations for a defense counsel's failure to bring a pre-trial motion (see, People v. Rivera, 71 N.Y.2d 705, 709; see also, People v. Wells, 187 A.D.2d 745). The defendant failed to make any showing, upon appeal, and a review of the record as a whole indicates that the defendant was not denied meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147).
It was an error for the trial court to grant the People's motion to amend the indictment to add the language "That the defendant possessed the dangerous instrument with the intent to use it unlawfully against another". We agree that the evidence demonstrates that the Grand Jury voted to indict the defendant, inter alia, for criminal possession of a weapon in the fourth degree, based upon evidence that he used a machete to seriously injure the complainants. However, the amendment of the indictment to include the aforesaid language is an impermissible substantive change in the indictment which cannot stand (see, People v Perez, 83 N.Y.2d 269, modfg 191 A.D.2d 285). Thus, the conviction under the sixth count of the indictment charging the defendant with criminal possession of a weapon in the fourth degree, and the sentence imposed thereon, must be vacated. Sullivan, J.P., O'Brien, Goldstein and Florio, JJ., concur.