PEOPLE v. MONTADA (1998)

Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered on or about February 16, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 7 to 14 years, unanimously affirmed.

 Our reading of the totality of the record, including the court's colloquy with defendant after the sidebar had been completed, reveals that defendant voluntarily, knowingly and intelligently waived his right to be present at the voir dire sidebar conference in question.   There is considerable flexibility regarding the acceptable form of such waivers (see, People v. Vargas, 88 N.Y.2d 363, 375-76, 645 N.Y.S.2d 759, 668 N.E.2d 879;  People v. Leonor, 245 A.D.2d 22, 665 N.Y.S.2d 76).

 The court properly excused a prospective juror for cause, since a review of the entire record (see, People v. Taylor, 120 A.D.2d 325, 326, 502 N.Y.S.2d 1) reveals his inability to follow the court's instructions as to reasonable doubt, and that he would be unable to “evaluate [the] evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court.”  (People v. Guzman, 76 N.Y.2d 1, 5, 556 N.Y.S.2d 7, 555 N.E.2d 259).

 The court properly exercised its discretion as to the admissibility and bounds of expert testimony concerning narcotics transactions (see, People v. Garcia, 196 A.D.2d 433, 601 N.Y.S.2d 482, affd. 83 N.Y.2d 817, 611 N.Y.S.2d 490, 633 N.E.2d 1094).   The testimony was relevant to accessorial liability and was not unduly prejudicial.

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.