PEOPLE v. JOHNSON (2006)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered August 10, 2004, convicting defendant, after a jury trial, of persistent sexual abuse, and sentencing him to a term of 2 to 4 years, unanimously affirmed.

 The record does not establish that defendant was absent from a preliminary discussion of Sandoval issues at sidebar (see People v. Foster, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003];  People v. Smith, 208 A.D.2d 455, 618 N.Y.S.2d 216 [1994], lv. denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467 [1995] ).   The jury was absent from the courtroom, and “it would be entirely speculative to conclude that the sidebar was conducted in a hushed dialogue out of defendant's hearing” (People v. Gonzalez, 203 A.D.2d 192, 611 N.Y.S.2d 155 [1994], lv. denied 84 N.Y.2d 826, 617 N.Y.S.2d 146, 641 N.E.2d 167 [1994] ).   Moreover, following the sidebar, the court held an essentially de novo hearing in open court, where defendant had the opportunity to provide meaningful input into the determination (see People v. Martinez, 261 A.D.2d 143, 690 N.Y.S.2d 198 [1999], lv. denied 93 N.Y.2d 1022, 697 N.Y.S.2d 581, 719 N.E.2d 942 [1999] ).

 The court properly declined to reward defendant's courtroom outburst by granting a mistrial (see e.g. People v. Martinez, 284 A.D.2d 157, 725 N.Y.S.2d 847 [2001] ).   Any potential for prejudice that resulted from this behavior was of defendant's own making.   Defendant did not preserve his other challenges to the court's handling of his outburst (People v. Lombardo, 61 N.Y.2d 97, 104, 472 N.Y.S.2d 589, 460 N.E.2d 1074 [1984];  People v. Fernandez, 269 A.D.2d 167, 701 N.Y.S.2d 907 [2000], lv. denied 95 N.Y.2d 796, 711 N.Y.S.2d 164, 733 N.E.2d 236 [2000] ), or his argument concerning the court's instructions during jury selection, and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal.