Opinion
November 29, 1994
Appeal from the Supreme Court, Bronx County (William H. Wallace, III, J.).
Defendant's claim that his right to be present was violated when the court conducted sidebar conferences of prospective jurors in his absence is without merit because defendant waived his right to be present. After defendant initially responded that he was not waiving his right to be present, the court again spoke with him, whereupon, the prosecutor asked "is the record clear now that the defendant is waiving his right to appear at the bench?" The court said "yes" and neither defendant nor defense counsel controverted the statements (People v. Perez, 196 A.D.2d 781, 784, lv denied 82 N.Y.2d 900; see, People v. Brown, 196 A.D.2d 428, 430, lv denied 82 N.Y.2d 804).
At trial, defendant tried to cross-examine a witness regarding a prior shooting, purportedly to demonstrate that the witness was involved in both crimes. The trial court properly precluded the cross-examination since there was no "clear connection" between the witness and either of the shootings, and any similarity between the crimes "raised no more than a mere suspicion" that the same person committed both crimes (People v. Coleman, 186 A.D.2d 509, lv denied 81 N.Y.2d 787).
Finally, and as the People concede, manslaughter in the first degree is not an armed felony offense and thus the sentence imposed on that conviction must be modified. Since the clear intent of the court was to impose the maximum sentence, there is no need to remand for resentencing and the sentence is modified as noted (People v. Garcia, 129 A.D.2d 505, lv denied 70 N.Y.2d 704).
Concur — Wallach, J.P., Ross, Rubin, Nardelli and Tom, JJ.