PEOPLE v. McGARY (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and assault in the second degree (§ 120.05[2] ).   Contrary to the contention of defendant, he was not denied his constitutional and statutory right to be present at all material stages of the trial.   Here, the record establishes that the conferences at issue “involv[ed] matters of law or procedure that [had] no potential for meaningful input from” defendant (People v. DePallo, 96 N.Y.2d 437, 443, 729 N.Y.S.2d 649, 754 N.E.2d 751;  see generally People v. Williams [Mike], 85 N.Y.2d 945, 626 N.Y.S.2d 1002, 650 N.E.2d 849;  People v. Horan, 290 A.D.2d 880, 883-884, 737 N.Y.S.2d 145, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840).   We note in addition that defendant had no right to be present at that part of the pretrial conference concerning scheduling issues (see People v. DeLong, 206 A.D.2d 914, 915, 615 N.Y.S.2d 168).   Contrary to the further contention of defendant, the People met their burden of establishing by a preponderance of the evidence that he was competent to stand trial (see People v. Mendez, 1 N.Y.3d 15, 19-20, 769 N.Y.S.2d 162, 801 N.E.2d 382;  People v. Carter, 192 A.D.2d 669, 598 N.Y.S.2d 718, lv. denied 82 N.Y.2d 707, 601 N.Y.S.2d 603, 619 N.E.2d 681).   According to the two experts who testified for the People, defendant was able to understand the proceedings and assist in his defense (see People v. Brown, 4 A.D.3d 886, 886-887, 772 N.Y.S.2d 143, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198).

 Defendant failed to object to the prosecutor's cross-examination of a defense witness concerning the witness's prior criminal conviction and therefore failed to preserve for our review his present contention that County Court erred in allowing that cross-examination (see CPL 470.05[2];  People v. Bent, 160 A.D.2d 1176, 1178, 555 N.Y.S.2d 454, lv. denied 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676).   In any event, the cross-examination was not improper (see generally People v. Ayrhart [Joel], 101 A.D.2d 703, 704, 475 N.Y.S.2d 687).   The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: