People v. Rodriguez

251 A.D.2d 603, 673 N.Y.S.2d 940, 1998 N.Y. App. Div. LEXIS 7474

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered July 25, 1996, convicting him of two counts of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that since he never waived his Antommarchi rights (People v Antommarchi, 80 NY2d 247) at his retrial, he was denied his right to be present at the sidebar with a prospective juror concerning her ability to be fair. A defendant must provide an adequate record for determining whether he or she was wrongfully excluded from a material stage of the trial (see, People v Maher, 89 NY2d 318; see also, People v Kinchen, 60 NY2d 772, 773-774). Here, since the record fails to disclose whether or not the defendant was present during the subject sidebar conference, meaningful appellate review of this issue is precluded (see, People v Vanegas, 237 AD2d 469; People v McCargo, 219 AD2d 683, lv denied 87 NY2d 904, cert denied 518 US 1008).

The defendant’s remaining issues are unpreserved for appellate review and, in any event, are without merit (see, CPL 470.05 [2]; People v Lyons, 81 NY2d 753; People v Basora, 75 NY2d 992). Miller, J. P., Thompson, Joy and Florio, JJ., concur.