PEOPLE v. JACKSON (2008)

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered March 15, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (five counts), criminal possession of a controlled substance in the seventh degree (eight counts) and criminally using drug paraphernalia in the second degree (three counts).

Following a roadside search of a vehicle being operated by codefendant Stephanie L. Jackson in which defendant was a passenger, both were arrested and subsequently charged in a multicount indictment with various drug crimes.   At the conclusion of the ensuing jury trial, defendant was convicted of criminal possession of a controlled substance in the third degree (five counts), criminal possession of a controlled substance in the seventh degree (eight counts) and criminally using drug paraphernalia in the second degree (three counts).   Defendant was thereafter sentenced, as a second felony offender, to an aggregate prison term of seven years and three years of postrelease supervision.   Defendant now appeals.

 We are unpersuaded by defendant's argument that her right to be present at sidebar questioning of prospective jurors was violated.   While a defendant's right to be present at every material stage of a trial is well established (see e.g. People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996];  People v. Abdullah, 28 A.D.3d 940, 941, 813 N.Y.S.2d 805 [2006], lv. denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ), this right may be waived through a voluntary, knowing and intelligent choice (see People v. Velasquez, 1 N.Y.3d 44, 47, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003];  People v. Beverly, 6 A.D.3d 874, 875, 775 N.Y.S.2d 409 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004];  People v. Pochily, 255 A.D.2d 695, 696, 680 N.Y.S.2d 695 [1998], lv. denied 93 N.Y.2d 856, 688 N.Y.S.2d 504, 710 N.E.2d 1103 [1999] ).   We find such waiver here.   Prior to commencement of jury selection, County Court twice advised defendant that she had “the absolute right” to attend all sidebar conferences, including those involving the questioning of potential jurors.   The court further instructed defendant and her counsel that if defendant did not come up to the bench when the attorneys were called for sidebar discussions, it would assume that she discussed the issue with counsel and made a willing decision to waive her right to be present for such sidebars.   When asked if she understood, defendant answered in the affirmative.   In light of the “flexible [approach] regarding the acceptable form of voluntary waivers” of statutory rights such as this (People v. Vargas, 88 N.Y.2d 363, 376, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ), we find that defendant's decision to not attend any of the sidebar colloquies after being fully informed of the right to be present, as well as her failure to object to her absence therefrom, constitutes a valid waiver (see People v. Keen, 94 N.Y.2d 533, 538-539, 707 N.Y.S.2d 380, 728 N.E.2d 979 [2000];  People v. McHerrin, 19 A.D.3d 1166, 1166, 796 N.Y.S.2d 211 [2005], lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160 [2005];  People v. Harris, 304 A.D.2d 848, 850, 759 N.Y.S.2d 776 [2003], lv. denied 100 N.Y.2d 582, 764 N.Y.S.2d 392, 796 N.E.2d 484 [2003] ).

 Next, defendant contends that County Court violated CPL 310.30 when it responded to a juror's oral question during deliberations without affording defense counsel an opportunity to suggest an appropriate response.   During the course of deliberations, the jury submitted a written request to County Court seeking reinstruction on certain legal concepts.   After the court furnished these definitions, the foreperson orally asked the court if it could “amplify the legal definition of dominion.”   County Court immediately responded by rereading the relevant portion of the charge to the jury.   Initially, having failed to interpose an objection to the court's procedure and its response to the juror's oral inquiry, defendant's claim of error has not been preserved for our review (see People v. Stewart, 81 N.Y.2d 877, 878-879, 597 N.Y.S.2d 634, 613 N.E.2d 540 [1993];  People v. Fink, 199 A.D.2d 855, 856, 606 N.Y.S.2d 400 [1993], lv. denied 83 N.Y.2d 852, 612 N.Y.S.2d 383, 634 N.E.2d 984 [1994];  People v. Nevins, 178 A.D.2d 107, 108, 577 N.Y.S.2d 257 [1991], lv. denied 79 N.Y.2d 922, 582 N.Y.S.2d 82, 590 N.E.2d 1210 [1992];  cf. People v. DeRosario, 81 N.Y.2d 801, 802-803, 595 N.Y.S.2d 372, 611 N.E.2d 273 [1993] ).   Furthermore, the foreperson's oral question concerned an identical issue that had been raised in the jury's written request for supplemental instructions, and County Court simply reread the “dominion and control” portion of the instruction that it had given only moments earlier in response to the written inquiry.   Under these circumstances, we decline to exercise our interest of justice jurisdiction with respect to this issue inasmuch as “defendant could not have been prejudiced by County Court's mere reiteration of a portion of its charge which correctly recited the law” (People v. Fink, 199 A.D.2d at 856, 606 N.Y.S.2d 400;  see People v. Quiles, 228 A.D.2d 342, 342, 644 N.Y.S.2d 712 [1996], lv. denied 88 N.Y.2d 1071, 651 N.Y.S.2d 415, 674 N.E.2d 345 [1996] ).

Defendant's remaining contention, that County Court abused its discretion in allowing certain expert testimony, is also unpreserved for appellate review (see CPL 470.05[2];  People v. Tarver, 292 A.D.2d 110, 114-115, 741 N.Y.S.2d 130 [2002], lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] ).

ORDERED that the judgment is affirmed.

PETERS, J.

MERCURE, J.P., CARPINELLO, ROSE and KAVANAGH, JJ., concur.