People v. Roman ( 1995 )

Judgment, Supreme Court, New York County (Edward Sheridan, J.), rendered February 9, 1993, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to 20 years to life, affirmed.

Defendant claims that his right to be present was violated when the court conducted a sidebar conference with a prospective juror in his absence on October 28th. While the dissent also asserts that "[t]he record does not indicate the defendant’s presence at the aforementioned sidebar conducted on October 28th”, it is the burden of the defendant to provide an adequate record with respect to his absence from sidebar conferences (People v Arhin, 203 AD2d 62, 62-63, lv denied 83 NY2d 908). Consequently, this claim is unreviewable, since the record before us is inadequate to show the substance of the discussion or even the identity of the juror.

The record also discloses that defendant was not denied his right to be present where a second juror stated in open court that she had been recently victimized in the presence of her child. The defendant was present when the juror made this statement. During the subsequent off-the-record discussion with defendant’s counsel, she stated that she could not be fair. She was ultimately challenged for cause with defendant’s consent. Defendant never challenged his attorney’s confirmation that the retained jurors were acceptable to the defense (People v Shabani, 203 AD2d 142, lv denied 84 NY2d 832). While the dissent would impose a rigid, mechanistic rule requiring automatic reversal under these circumstances, the Court of Appeals and this Court have imposed no such requirement. People v Ahmed (66 NY2d 307), cited by the dissent, involved the absence of the Trial Judge and the delegation of some of his duties to his law secretary during a part of the jury’s deliberations. In People v Mitchell (80 NY2d 519), the holding dealt only with the retroactive application of People v Antommarchi (80 NY2d 247), and the Court of Appeals noted that in Antommarchi, "we permitted defendant to successfully raise the question on appeal notwithstanding his failure to object to exclusion from the side-bar conferences during jury selection. The defendant could have waived his presence, of course (see, People v Webb, 78 NY2d 335, 339-340), but no waiver had been requested because under the existing practice there was no reason to do so”. (People v Mitchell, supra, at 525.)

While, therefore, the Court of Appeals has not spoken on the issue before us, this Court has held, a year and a half after the decision in Mitchell, in a case where no prospective juror who was questioned in the absence of defendant was selected to serve on the jury that "any loss of the opportunity to observe prospective jurors cannot be said to have operated to defendant’s prejudice” (People v Shabani, supra, at 143; see also, People v Arhin, 203 AD2d 62, 63, supra). In People v Perez (196 AD2d 781, lv denied 82 NY2d 900), also decided by us after the decision in Mitchell, we held a defendant to have waived the right to be present by affirmatively seeking inquiry in camera. It is noteworthy, that, in Perez, although one member of the panel did not agree with the theory of waiver, he concurred in the result since "none of the prospective jurors questioned in the defendant’s absence were ultimately selected to serve on the jury which convicted him” (People v Perez, supra, at 784 [Rosenberger, J., concurring]).

Defendant’s contention that the prosecutor became an unsworn witness when he cross-examined him about prior conflicting statements which he made pursuant to a cooperation agreement with the prosecutor is unpreserved and we decline to review it in the interest of justice. If we were to review it, we would find that the prosecutor laid a proper foundation and had a good faith basis for his questioning after defendant stated during his direct testimony that a prosecution witness was the mastermind of the underlying robbery (People v Wise, 46 NY2d 321, 326; People v Gordon, 202 AD2d 166, 168, lv denied 83 NY2d 911).

We have considered defendant’s remaining contention and find it to be without merit. Concur—Rosenberger, Nardelli and Williams, JJ.