PEOPLE v. BELTON (1998)

Appeal by the defendant from a judgment of the County Court, Westchester County (Scarano, J.), rendered May 5, 1995, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that his right to be present during a material stage of the proceedings was violated when he did not attend two sidebar conferences after which two prospective jurors were excused by the court.   The defense counsel's waiver of the defendant's right to attend the two sidebar conferences constituted an effective waiver of the defendant's right to be present (see, People v. Stokes, 216 A.D.2d 337, 628 N.Y.S.2d 156;  People v. Spruill, 212 A.D.2d 381, 622 N.Y.S.2d 264).   In any event, since the sidebar conferences related to the court's inquiry concerning matters which might lead to a juror's disqualification, such as physical impairments, family obligations, and work commitments, the defendant had no statutory or constitutional right to participate in the conferences as the disqualification of the prospective jurors prior to formal voir dire was a matter for the court (see, People v. Camacho, 90 N.Y.2d 558, 664 N.Y.S.2d 578, 687 N.E.2d 396;  People v. Velasco, 77 N.Y.2d 469, 568 N.Y.S.2d 721, 570 N.E.2d 1070).  Moreover, as the prospective jurors were excused by the court, the record negates the possibility that the defendant's presence could have had an impact on the outcome of the trial (People v. Maher, 89 N.Y.2d 318, 653 N.Y.S.2d 79, 675 N.E.2d 833;  People v. Roman, 88 N.Y.2d 18, 643 N.Y.S.2d 10, 665 N.E.2d 1050).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.