PEOPLE v. ANDERSON (2002)

Defendant contends that he was denied his right to be present during certain sidebar discussions with prospective jurors and bench conferences between the prosecutor, defense counsel and Supreme Court.   The record indicates that defendant was absent for those sidebar discussions and bench conferences, but it is unclear whether defendant waived his right to be present (see, People v. Marzug, 270 A.D.2d 945, 946, 706 N.Y.S.2d 804;  People v. McCullough, 248 A.D.2d 938, 939, 670 N.Y.S.2d 127).   With respect to the sidebar discussions, moreover, the record does not enable us to determine what rulings were made regarding the service of each prospective juror.  “Although only one of the jurors in question served, the record does not specify whether the others were excused by the court or on consent of the parties;  whether the prospective jurors were challenged for cause or peremptorily challenged;  or who made such challenges” (People v. Lucious, 269 A.D.2d 766, 768, 704 N.Y.S.2d 758).   Further, with respect to the bench conferences, the record also fails to disclose “whether ‘only questions of law or procedure’ were involved such that defendant's presence was not required” (People v. Russo, 283 A.D.2d 910, 911, 723 N.Y.S.2d 917, lv. dismissed 96 N.Y.2d 867, 730 N.Y.S.2d 42, 754 N.E.2d 1125, quoting People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293).   We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a reconstruction hearing on the issues set forth herein (see, People v. McCullough, supra ).

We reject the contention of defendant that the court erred in denying his motion to suppress physical evidence seized by the police pursuant to a search warrant.   Contrary to defendant's contentions, the information provided by the confidential informant established probable cause to believe that cocaine was being sold at defendant's residence (see, People v. Abron, 278 A.D.2d 919, 723 N.Y.S.2d 579, lv. denied 96 N.Y.2d 797, 726 N.Y.S.2d 374, 750 N.E.2d 76);  the description of the premises on the warrant was sufficient to enable the executing officers to ascertain the premises intended (see, People v. Davenport, 231 A.D.2d 809, 810, 647 N.Y.S.2d 306, lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295);  the information supporting the issuance of the warrant was not stale (see, People v. Telesco, 207 A.D.2d 920, 921, 616 N.Y.S.2d 773);  and the warrant application set forth sufficient facts to justify the issuance of a no-knock warrant (see, People v.. Ackerman, 237 A.D.2d 849, 850-851, 654 N.Y.S.2d 876, lv. denied 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982).   The evidence is legally sufficient to support the conviction and the verdict is not contrary to 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).   We do not address defendant's remaining contentions.

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court for further proceedings.

MEMORANDUM: