PEOPLE v. McDERMOTT (1997)

 We reject the contention that defendant was denied his statutory right to be present during a discussion with a sworn juror in County Court Judge's chambers and during numerous other sidebar conferences during jury selection and the trial (see, CPL § 260.20).   Defense counsel, in the presence of defendant, waived defendant's right to be present on those occasions (see, People v. Smallwood, 225 A.D.2d 713, 639 N.Y.S.2d 938, lv. denied 88 N.Y.2d 942, 647 N.Y.S.2d 176, 670 N.E.2d 460;  People v. Dennis, 206 A.D.2d 843, 616 N.Y.S.2d 121, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 12, 642 N.E.2d 331;  People v. Howard, 206 A.D.2d 844, 616 N.Y.S.2d 122, lv. denied 84 N.Y.2d 868, 618 N.Y.S.2d 14, 642 N.E.2d 333).   We likewise reject the contention that defendant was denied his right to be present when the court conducted a private sidebar conversation with a prospective juror.   Because defense counsel was not present, the waiver did not encompass that conversation.   Nevertheless, the court disclosed the substance of that conversation in defendant's presence, and defense counsel declined to pursue the opportunity afforded by the court to ask follow-up questions of the prospective juror (see, People v. Starks, 216 A.D.2d 120, 121, 629 N.Y.S.2d 749, affd. 88 N.Y.2d 18, 29, 643 N.Y.S.2d 10, 665 N.E.2d 1050).

 Before defense counsel waived defendant's right to be present and before the formal voir dire commenced, the court conducted a discussion in chambers with 11 prospective jurors regarding bias and their predisposition to believe or discredit potential witnesses.   Four of those prospective jurors were excused for cause by the court and with the consent of defense counsel, and a fifth prospective juror was excused for cause by the court at the request of counsel for codefendant.   The prospective jurors were excused by the court either because they were familiar with codefendant or because they had been exposed to pretrial publicity, and each of them indicated that they could not be fair and impartial.   Because those prospective jurors were excused for cause by the court, defendant was not denied the right to be present at a material stage of the trial (see, People v. Maher, 89 N.Y.2d 318, 325, 653 N.Y.S.2d 79, 675 N.E.2d 833;  People v. Roman, 88 N.Y.2d 18, 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050, rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229).   Four other prospective jurors who were interviewed during the screening procedure in chambers also were interviewed during the formal voir dire.   Because he was present for the formal voir dire of those prospective jurors who were not excused, defendant was not denied the opportunity to give meaningful input in the selection or dismissal of those prospective jurors (see, People v. Camacho, 90 N.Y.2d 558, 664 N.Y.S.2d 578, 687 N.E.2d 396;  People v. Roman, supra, at 27, 643 N.Y.S.2d 10, 665 N.E.2d 1050;  People v. Velasco, 77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070).

Defendant failed to preserve for our review his contentions that the court erred in instructing the jury with respect to the burden of proof and the alibi defense (see, CPL § 470.05[2];  People v. Lipton, 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059).   In any event, his contentions lack merit (see, People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Ford, 66 N.Y.2d 428, 441, 497 N.Y.S.2d 637, 488 N.E.2d 458;  People v. Canty, 60 N.Y.2d 830, 831-832, 469 N.Y.S.2d 693, 457 N.E.2d 800).

Judgment unanimously affirmed.

MEMORANDUM: