PEOPLE v. FREECE (2007)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal contempt in the first degree (Penal Law § 215.51[b][v] ) and aggravated harassment in the second degree (§ 240.30[1] [a] ).   We reject defendant's contention that County Court erred in its Molineux ruling.   Evidence of defendant's prior bad acts involving the victim was properly admitted because it was relevant with respect to the issues of motive and intent (see People v. Melendez, 8 A.D.3d 680, 778 N.Y.S.2d 894, lv. denied 3 N.Y.3d 741, 786 N.Y.S.2d 820, 820 N.E.2d 299;  People v. Mathias, 7 A.D.3d 824, 825-826, 776 N.Y.S.2d 622;  People v. Wright, 288 A.D.2d 409, 733 N.Y.S.2d 225, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370).   The evidence demonstrated elements of aggravated harassment in the second degree, i.e., that defendant intended to threaten the victim and to cause her to be alarmed (see § 240.30[1][a] ).   The court properly concluded that the probative value of that evidence outweighed its potential for prejudice and issued the appropriate limiting instruction to the jury (see generally People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   We reject the further contention of defendant that he was denied his right to be present at a material stage of the trial.   Even assuming, arguendo, that defendant was absent during a sidebar conference, we conclude that the conference in question involved a purely legal discussion and “neither implicated defendant's peculiar factual knowledge nor otherwise presented the potential for his meaningful participation” (People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293;  see People v. Fabricio, 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863;  People v. Robinson, 28 A.D.3d 1126, 1128, 814 N.Y.S.2d 418, lv. denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288;  People v. Borzouye, 265 A.D.2d 419, 697 N.Y.S.2d 630, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097).

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

MEMORANDUM: