PEOPLE v. McLEAN (1998)

Judgment, Supreme Court, New York County (Herbert Altman, J., on speedy trial motion;  Daniel FitzGerald, J., at jury trial and sentence), rendered 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 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879).   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, 645 N.Y.S.2d 759, 668 N.E.2d 879) 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 A.D.2d 212, 656 N.Y.S.2d 258, lv. denied 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229;  People v. Vidal, 180 A.D.2d 447, 580 N.Y.S.2d 13, lv. denied 80 N.Y.2d 839, 587 N.Y.S.2d 924, 600 N.E.2d 651;  see also, People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.