PEOPLE v. SWEET (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of one count of robbery in the first degree (Penal Law § 160.15[3] ) and two counts each of burglary in the first degree (§ 140.30 [2], [3] ) and robbery in the second degree (§ 160.10[2][a], [b] ).  County Court properly denied defendant's motion to set aside the verdict pursuant to CPL 330.30.   The majority of the grounds for the motion were improperly based upon matters outside the trial record (see People v. Spirles, 294 A.D.2d 810, 811, 742 N.Y.S.2d 457, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579;  see also People v. Ortiz, 250 A.D.2d 372, 375, 672 N.Y.S.2d 327, lv. denied 92 N.Y.2d 881, 678 N.Y.S.2d 28, 700 N.E.2d 566).   For the same reason, those grounds may not be raised on direct appeal, but are properly raised in a motion pursuant to CPL 440.10 (see People v. Williams, 305 A.D.2d 804, 808, 759 N.Y.S.2d 580;   People v. Darnell, 146 A.D.2d 583, 584, 536 N.Y.S.2d 505, lv. denied 73 N.Y.2d 976, 540 N.Y.S.2d 1010, 538 N.E.2d 362).

 We reject the contention of defendant that the court erred in excluding hearsay testimony that certain witnesses were unable to identify him in a photo array (see People v. Lopez, 291 A.D.2d 279, 738 N.Y.S.2d 308, lv. denied 98 N.Y.2d 677, 746 N.Y.S.2d 467, 774 N.E.2d 232;  People v. Benjamin, 272 A.D.2d 276, 277, 709 N.Y.S.2d 517, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 644, 739 N.E.2d 1149).   Contrary to the further contention of defendant, his right to be present during a material stage of the trial was not violated by his absence from a conference conducted in chambers to address defense counsel's concerns with respect to anticipated perjured testimony (see People v. Andrades, 4 N.Y.3d 355, 362, 795 N.Y.S.2d 497, 828 N.E.2d 599;  People v. DePallo, 96 N.Y.2d 437, 443, 729 N.Y.S.2d 649, 754 N.E.2d 751).   Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct (see CPL 470.05[2];  People v. Smith, 24 A.D.3d 1286, 1287, 805 N.Y.S.2d 903, lv. denied 6 N.Y.3d 838, 814 N.Y.S.2d 86, 847 N.E.2d 383), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The sentence is not unduly harsh or severe.   We have examined defendant's remaining contentions and conclude that none requires reversal.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: