People v. Pena

243 A.D.2d 337, 664 N.Y.S.2d 541, 1997 N.Y. App. Div. LEXIS 10218

Opinion

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered March 29, 1995, convicting defendant, after a jury trial, 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 4V2 to 9 years, unanimously affirmed.

Defendant’s claim that he was excluded from a robing room conference is unreviewable because he did not meet his obligation to insure that a proper record is created to permit appellate review (People v Kinchen, 60 NY2d 772; People v Moe, 227 AD2d 253, lv denied 88 NY2d 968; People v Noble, 227 AD2d 238, lv denied 88 NY2d 991; compare, People v Monclavo, 87 NY2d 1029). Moreover, the court reporter’s notation relied upon by defendant fails to establish defendant’s absence, when the notation is read in the context of the entire voir dire record along with the reasonable inferences that may be drawn therefrom (see, People v Moe, supra; People v Rivera, 225 AD2d 360, lv denied 88 NY2d 941; People v Brown, 221 AD2d 160, lv denied 87 NY2d 898). Concur—Milonas, J. P., Rubin, Mazzarelli and Andrias, JJ.