PEOPLE v. McNEIL (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered June 23, 1997, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 7 1/212 to 15 years imprisonment.

ORDERED that the judgment is modified, on the law, by reducing the sentence imposed on the conviction of manslaughter in the second degree from an indeterminate term of 7 1/212 to 15 years imprisonment to an indeterminate term of 5 to 15 years imprisonment;  as so modified, the judgment is affirmed.

 Contrary to the defendant's contention, the record reveals that he voluntarily, knowingly, and intelligently waived his right to be present during sidebar conferences with prospective jurors (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95).   The defense counsel, in the presence of the defendant, told the court that the defendant waived his right to be present during the sidebar interviews (see, People v. Broadwater, 248 A.D.2d 719, 671 N.Y.S.2d 99;  People v. Stokes, 216 A.D.2d 337, 628 N.Y.S.2d 156).   Accordingly, the defendant's waiver was valid.

 The sentence imposed on the conviction of manslaughter in the second degree was illegal (see, Penal Law § 70.00[3][b];  125.15).   It is clear, however, that the Supreme Court intended to impose upon the defendant the maximum sentence, and we find that it would be appropriate to do so.   Consequently, the judgment is modified to reflect the intention of the Supreme Court (see, People v. Dorch, 117 A.D.2d 677, 498 N.Y.S.2d 415;  People v. Gammon, 251 A.D.2d 512, 675 N.Y.S.2d 548).

The sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.