Opinion
February 20, 1996
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
We find no basis to disturb the hearing court's factual findings ( see, People v. Falciglia, 153 A.D.2d 795, affd 75 N.Y.2d 935) that defendant, a principal in a realty corporation charged with hiring a third party to burn a building purchased only a few days previously by the corporation, was never represented in connection with the instant arson charge by the attorney who appeared for the building purchaser at the closing, and never requested counsel during his custodial interview. Accordingly, no indelible right to counsel had attached on the basis of the representation in the real estate transaction ( compare, People v Bing, 76 N.Y.2d 331, 348-349, with People v. West, 81 N.Y.2d 370, 373-374). Nor was defendant's right to be present violated when the court and the attorneys removed to the robing room, without defendant, during cross-examination of defendant at the hearing, to discuss whether prior counsel had ever represented defendant personally, or had only represented the realty corporation at the closing. There was no relationship between defendant's momentary absence during this ancillary proceeding and his ability to defend himself, and the discussion involved only a matter of law ( People v. Rodriguez, 85 N.Y.2d 586, 590-591). Defendant's remaining contentions are both unpreserved and without merit.
Concur — Milonas, J.P., Rosenberger, Rubin, Kupferman and Mazzarelli, JJ.