PEOPLE v. LEONOR (1997)

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered June 29, 1995, convicting defendant, after a jury trial, of kidnapping in the first degree, and sentencing her to a term of 25 years to life, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to 18 years to life, and otherwise affirmed.

 Contrary to defendant's contention, she was not deprived of her right to attend bench conferences during voir dire since the record confirms that, throughout jury selection, she knowingly, voluntarily and intelligently waived her right to be present.   A flexible approach has been adopted regarding the acceptable form of voluntary waivers when statutory rights such as those involved herein (CPL 260.20), rather than constitutional rights, are at issue (see, People v. Vargas, 88 N.Y.2d 363, 375, 645 N.Y.S.2d 759, 668 N.E.2d 879).   Here, in both instances where the trial court referred to the Antommarchi issue (People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95), including its pronouncement that defendant could change her mind and assert her right to be present at bench conferences at any time, both defendant and her attorney stood silent, thereby indicating their agreement that defendant had waived her right to be present (see, People v. Curry, 209 A.D.2d 357, 618 N.Y.S.2d 795, lv. denied 85 N.Y.2d 908, 627 N.Y.S.2d 330, 650 N.E.2d 1332).   The totality of the record and the reasonable inferences that may be drawn therefrom indicate that the waiver extended from the inception of jury selection.

Although the prosecutor improperly relied on suppressed evidence in cross-examining defendant, such error was harmless in light of the overwhelming evidence establishing defendant's guilt and refuting the implausible defenses raised at trial (cf., People v. Simmons, 75 N.Y.2d 738, 551 N.Y.S.2d 196, 550 N.E.2d 449).

In view of the significant disparity between the instance sentence and the sentence imposed on the prime perpetrator, we modify the sentence to the extent indicated above.