People v. McLean

Appellate Division of the Supreme Court of New York

People v. McLean

246 A.D.2d 445, 668 N.Y.S.2d 180, 1998 N.Y. App. Div. LEXIS 426

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 22, 1998

StatusPublished

Cited by3 cases

This text of 246 A.D.2d 445 (People v. McLean) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McLean, 246 A.D.2d 445, 668 N.Y.S.2d 180, 1998 N.Y. App. Div. LEXIS 426 (N.Y. Ct. App. 1998).

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Opinion

Judgment, Supreme Court, New York County (Herbert Altman, J., on speedy trial motion; Daniel FitzGerald, J., at jury trial and sentence), [446]*446rendered March 18, 1994, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed. Motion for leave to appeal to this Court is denied.

Defendant’s waiver of his right to be present at sidebar questioning of prospective jurors was voluntarily made without any improper pressure or influence by the trial court (see, People v Vargas, 88 NY2d 363). The court repeatedly advised defendant of his right to be present during sidebar conferences with prospective jurors and informed him that the decision whether to be present was his and should only be made after consultation with counsel. The court further informed defendant that he could re-assert his right at any time if he chose to waive it. The court’s advice to defendant concerning the negative potential of his presence (see, People v Vargas, supra, at 377) did not invalidate the waiver.

Defendant’s speedy trial motion was properly denied. The court’s findings of excludability are amply supported by the totality of the record, including the parties’ submissions on the motion. Defendant’s failure to make a renewed motion or to provide minutes with respect to the period of time following the court’s CPL 30.30 decision and the start of trial precludes appellate review of this period (People v Heine, 238 AD2d 212, lv denied 90 NY2d 905; People v Vidal, 180 AD2d 447, lv denied 80 NY2d 839; see also, People v Olivo, 52 NY2d 309, 320).

We perceive no abuse of sentencing discretion. Concur—Milonas, J. P., Rosenberger, Wallach, Williams and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Herbert Altman, J., on speedy trial motion; Daniel FitzGerald, J., at jury trial and sentence), [446]*446rendered March 18, 1994, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed. Motion for leave to appeal to this Court is denied.

Defendant’s waiver of his right to be present at sidebar questioning of prospective jurors was voluntarily made without any improper pressure or influence by the trial court (see, People v Vargas, 88 NY2d 363). The court repeatedly advised defendant of his right to be present during sidebar conferences with prospective jurors and informed him that the decision whether to be present was his and should only be made after consultation with counsel. The court further informed defendant that he could re-assert his right at any time if he chose to waive it. The court’s advice to defendant concerning the negative potential of his presence (see, People v Vargas, supra, at 377) did not invalidate the waiver.

Defendant’s speedy trial motion was properly denied. The court’s findings of excludability are amply supported by the totality of the record, including the parties’ submissions on the motion. Defendant’s failure to make a renewed motion or to provide minutes with respect to the period of time following the court’s CPL 30.30 decision and the start of trial precludes appellate review of this period (People v Heine, 238 AD2d 212, lv denied 90 NY2d 905; People v Vidal, 180 AD2d 447, lv denied 80 NY2d 839; see also, People v Olivo, 52 NY2d 309, 320).

We perceive no abuse of sentencing discretion. Concur—Milonas, J. P., Rosenberger, Wallach, Williams and Mazzarelli, JJ.

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Bluebook (online)

246 A.D.2d 445, 668 N.Y.S.2d 180, 1998 N.Y. App. Div. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mclean-nyappdiv-1998.

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