PEOPLE v. FORD (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered April 6, 1998, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, and grand larceny in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed upon the conviction of grand larceny in the second degree;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The hearing court properly found that there was probable cause for the police to arrest the defendant (see, People v. Alston, 279 A.D.2d 583, 719 N.Y.S.2d 679 [decided herewith]).

 The defendant knowingly, voluntarily, and intelligently waived his right to be present at sidebar conferences.   Prior to the commencement of voir dire, his trial counsel informed the court, in the defendant's presence, that he had discussed the matter with the defendant and that the defendant had agreed to waive this right (see, People v. Reynoso, 231 A.D.2d 592, 647 N.Y.S.2d 792;  People v. Smallwood, 225 A.D.2d 713, 639 N.Y.S.2d 938;  People v. Ming Yuen, 222 A.D.2d 613, 636 N.Y.S.2d 346;  People v. Stokes, 216 A.D.2d 337, 628 N.Y.S.2d 156).   The fact that the defendant expressed a choice through trial counsel does not render the waiver invalid (see, People v. Underwood, 201 A.D.2d 597, 607 N.Y.S.2d 955).   There is no requirement that the trial court inquire of the defendant directly (see, People v. Spotford, 85 N.Y.2d 593, 598, 627 N.Y.S.2d 295, 650 N.E.2d 1296).

 As the People correctly concede, the defendant should not have been sentenced as a persistent violent felony offender upon his conviction of grand larceny in the second degree since this offense is not defined as a violent felony (see, Penal Law §§ 70.08[1][a], 70.02;  People v. Hichez, 240 A.D.2d 678, 659 N.Y.S.2d 488;  People v. Scruggs, 201 A.D.2d 514, 607 N.Y.S.2d 410).