PEOPLE v. McHERRIN (2005)

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of rape in the first degree (Penal Law § 130.35[1], [4] ) and a single count of sexual abuse in the first degree (§ 130.65[1] ).   We reject the contention of defendant that he was denied his right to be present at sidebar conferences conducted during jury selection.   The record establishes that, before the first such conference, County Court informed defendant that he had the right to be present.  “Defendant's failure to attend sidebar conferences after having been informed of the right to do so constitutes a waiver of that right” (People v. Yeldon, 251 A.D.2d 1047, 1048, 675 N.Y.S.2d 262, lv. denied 92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857;  see People v. Inskeep, 272 A.D.2d 966, 708 N.Y.S.2d 784, lv. denied 95 N.Y.2d 866, 715 N.Y.S.2d 221, 738 N.E.2d 369;  People v. Kanner, 272 A.D.2d 866, 866-867, 708 N.Y.S.2d 659, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370;  see also People v. Owens, 275 A.D.2d 905, 713 N.Y.S.2d 388, lv. denied 95 N.Y.2d 937, 939, 721 N.Y.S.2d 613, 616, 744 N.E.2d 149, 152).   Defendant's challenge to the testimony of the People's expert on child sexual abuse is unpreserved for our review (see People v. Kairis, 4 A.D.3d 806, 807, 771 N.Y.S.2d 774, lv. denied 2 N.Y.3d 763, 778 N.Y.S.2d 781, 811 N.E.2d 43;  People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403) and without merit in any event (see People v. Miller, 91 N.Y.2d 372, 379, 670 N.Y.S.2d 978, 694 N.E.2d 61;  People v. Taylor, 75 N.Y.2d 277, 292-293, 552 N.Y.S.2d 883, 552 N.E.2d 131;  People v. Cronin, 60 N.Y.2d 430, 432, 470 N.Y.S.2d 110, 458 N.E.2d 351;  see also People v. Wardlaw, 18 A.D.3d 106, 114, 794 N.Y.S.2d 524).

We reject the contention of defendant that he was denied the effective assistance of counsel.   Rather, the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The sentence is not unduly harsh or severe.

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

MEMORANDUM: