People v. Williams

— Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered April 24, 1989, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree, and sentencing him as a second felony offender to a term of imprisonment of &V2 to 9 years, unanimously affirmed.

In this buy and bust operation, defendant and co-defendant Charles Burress acted in concert to sell cocaine to undercover officers. The defendants were immediately arrested, and their identities were confirmed by the undercover officers in a drive-by identification. Additional vials of crack were recovered from defendant in a search incident to arrest.

We reject defendant’s contention that the prosecutor engaged in the improper use of peremptory challenges in violation of Batson v Kentucky (476 US 79) for the reasons set forth in our decision on the appeal of co-defendant, People v Burress (164 AD2d 825, lv denied 76 NY2d 938). Nothing set forth in the instant appeal warrants a different result (see, People v Rodriguez, 139 AD2d 539, lv denied 72 NY2d 865). We likewise reject defendant’s challenges to comments made by the prosecutor on summation and to actions taken by the court, for the reasons set forth in People v Burress (supra). Again, nothing contained in appellant’s brief warrants a result different from that reached in the co-defendant’s appeal.

Defendant further contends that his statutory and constitutional rights to be present during a material stage of the proceedings were violated when, during jury selection, counsel, the prosecutor and the court conferred at the bench. Defendant was present in the courtroom but could not hear these discussions. It is uncontroverted that when the court read out the list of excused jurors, defendant had an opportunity, which he did not avail himself of, to confer with counsel. Similarly, defendant’s assent was sought prior to the swearing in of each prospective juror. Under these circumstances any objection has been waived. (See, People v Blake, 158 AD2d 979, 980, lv denied 75 NY2d 964.) Nor is review warranted in the interest of justice, since it cannot reasonably be said that defendant was deprived of any meaningful opportunity to participate in the jury selection. Concur — Sullivan, Asch, Kassal and Rubin, JJ.