PEOPLE v. EVANS (2006)

Judgment, Supreme Court, New York County (Carol Berkman, J. at first Antommarchi waiver;  James A. Yates, J. at second Antommarchi waiver, jury trial and sentence), rendered February 3, 2004, convicting defendant of two counts of rape in the first degree and sodomy in the first degree, and sentencing him, as a second felony offender, to consecutive terms of 20 years on the rape convictions, concurrent with a term of 20 years on the sodomy conviction, unanimously affirmed.

Defendant made a valid waiver of his right to be present at sidebar conferences during jury selection (see People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381 [1992] ).   As the result of a scheduling problem that necessitated the recommencement of jury selection, two Justices advised defendant of his rights under People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] on successive days.   Each of these colloquies was thorough and complete, and the only difference between them was that the first colloquy contained an implication that the waiver was revocable, while the second contained no such implication.   We reject defendant's argument that the omission from the second colloquy of any mention of revocation rendered the waiver invalid.   The two colloquies should be viewed as a whole (cf. People v. Peterson, 273 A.D.2d 88, 89, 709 N.Y.S.2d 540 [2000] [waiver of right to counsel viewed in light of prior colloquies on risks of self-representation] ).   In any event, defendant did not have the right to rescind his Antommarchi waiver (People v. Williams, 92 N.Y.2d 993, 684 N.Y.S.2d 163, 706 N.E.2d 1187 [1998] ), and never sought to do so.

We perceive no basis for reducing the sentence.