PEOPLE v. McKNIGHT (2001)

 Defendant was convicted following a jury trial of robbery in the third degree (Penal Law § 160.05), petit larceny (Penal Law § 155.25), and criminal possession of stolen property in the fifth degree (Penal Law § 165.40).   Defendant contends that his right to counsel was violated because his attorney was not present in the Grand Jury room when he executed his waiver of immunity (see, People v. Kirk, 275 A.D.2d 983, 713 N.Y.S.2d 620, lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 802, 745 N.E.2d 1025).   We disagree.   The record establishes that defendant appeared at the Grand Jury proceedings accompanied by his attorney, and defendant acknowledged that he understood that his attorney could be present with him in the Grand Jury room if he so desired.   Defendant was afforded an adequate opportunity to confer with his attorney, who was present immediately outside the Grand Jury room, before signing the waiver of immunity and testifying before the Grand Jury (see, People v. Williams, 277 A.D.2d 508, 509-510, 715 N.Y.S.2d 511;  People v. Caruso, 125 A.D.2d 403, 509 N.Y.S.2d 361).   Under the circumstances of this case, we conclude that defendant's right to counsel was not violated.   We further conclude that the waiver of immunity complied with the mandates of CPL 190.45(2) (see, People v. Stewart, 92 N.Y.2d 965, 966-967, 683 N.Y.S.2d 751, 706 N.E.2d 739;  People v. Hanley, 227 A.D.2d 144, 144-145, 642 N.Y.S.2d 22;  People v. Heidelmark, 214 A.D.2d 767, 769, 624 N.Y.S.2d 656, lv. denied 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629;  People v. Cole, 196 A.D.2d 634, 636, 601 N.Y.S.2d 352).

 Contrary to the contention of defendant, County Court properly concluded that defendant's statements were voluntary and thus admissible at trial (see, People v. Johnson, 265 A.D.2d 930, 930-931, 695 N.Y.S.2d 464, lv. denied 94 N.Y.2d 921, 708 N.Y.S.2d 361, 729 N.E.2d 1160).   Finally, the court did not abuse its discretion in excusing four prospective jurors sua sponte without voir dire by counsel;  the responses of those prospective jurors to questioning by the court revealed that they could not be fair and impartial and therefore were unqualified to serve (see, People v. Gayle, 238 A.D.2d 133, 133-134, 655 N.Y.S.2d 513, lv. denied 90 N.Y.2d 893, 662 N.Y.S.2d 436, 685 N.E.2d 217;  People v. Drumgoole, 234 A.D.2d 888, 889, 652 N.Y.S.2d 443, lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623;  People v. Mitchell, 224 A.D.2d 316, 637 N.Y.S.2d 733, lv. denied 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354).

Judgment unanimously affirmed.

MEMORANDUM: