Opinion
June 18, 1999
Appeal from Judgment of Onondaga County Court, Mulroy, J. — Burglary, 3rd Degree.
PRESENT: DENMAN, P. J., PINE, WISNER, HURLBUTT AND CALLAHAN, JJ.
Judgment unanimously affirmed. Memorandum: On a retrial following this Court's reversal of the judgment of conviction (see, People v. Jackson, 226 A.D.2d 1090, lv denied 88 N.Y.2d 1021), defendant was convicted of burglary in the third degree (Penal Law § 140.20) and criminal mischief in the third degree (Penal Law § 145.05). We reject the contention of defendant that he was denied the opportunity to participate meaningfully in the examination of prospective jurors at the bench because he was escorted by court officers (see, People v. Vargas, 88 N.Y.2d 363, 376). Because defendant failed to exhaust his peremptory challenges, he is foreclosed from contending that County Court erred in denying his application to dismiss a juror for cause (see, CPL 270.20; People v. Rodriguez, 242 A.D.2d 475, lv denied 91 N.Y.2d 879). We also reject the contention of defendant that, because he was previously acquitted of petit larceny (Penal Law § 155.25), the People were precluded from introducing proof of the larceny at the retrial and the retrial violated the Double Jeopardy Clause. We further conclude that defendant's right to be present during the trial was not violated by the removal of defendant from the courtroom during opening statements and a portion of the People's case. Defendant forfeited his right to be present by engaging in disruptive behavior after being warned by the court that he would be excluded if he continued such conduct (see, People v. Lewis, 231 A.D.2d 919, lv denied 89 N.Y.2d 1096). The contention of defendant that he was denied a fair trial by prosecutorial misconduct is not preserved for our review (see, CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). We have reviewed defendant's remaining contentions and conclude that they are without merit.