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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jeremy SPAICH, Defendant-Appellant.

Decided: March 31, 1999

Present:  HAYES, J.P., WISNER, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Kristin Marie Preve of counsel, Legal Aid Bureau of Buffalo, Inc., Buffalo, for defendant-appellant. Joseph Lawrence Kilbridge of counsel, Erie County District Attorney's Office, Buffalo, for plaintiff-respondent.

Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and other crimes.   Defendant, who was 17 years old at the time of this incident, admitted to the police that he stabbed his 50-year-old neighbor with a hunting knife after the victim made homosexual advances toward him.   At trial, defendant raised the affirmative defense that he acted under the influence of extreme emotional disturbance (see, Penal Law § 125.25[1][a] ).

 There is no merit to the contention of defendant that he was denied his statutory right to be present at several sidebar conferences during jury selection (see, CPL 260.20).   The record establishes that defense counsel, in the presence of defendant, waived defendant's right to be present at those conferences (see, People v. McDermott, 244 A.D.2d 918, 919, 665 N.Y.S.2d 187;  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).   Furthermore, defendant did not have a right to be present during the informal questioning of prospective jurors relating only to matters such as physical impairments, family obligations and work commitments (see, People v. Velasco, 77 N.Y.2d 469, 472-473, 568 N.Y.S.2d 721, 570 N.E.2d 1070;  People v. Wilson, 211 A.D.2d 136, 139, 626 N.Y.S.2d 936, affd. 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879).

Defendant failed to preserve for our review his contention that County Court erred in refusing to admit into evidence pornographic photographs and videotapes found in the victim's home (see, CPL 470.05[2] ).  In any event, we conclude that there is no merit to defendant's contention (cf., People v. Stewart, 240 A.D.2d 960, 659 N.Y.S.2d 337, lv. denied 90 N.Y.2d 1014, 666 N.Y.S.2d 109, 688 N.E.2d 1393;  see generally, People v. Fedora, 186 A.D.2d 982, 983, 588 N.Y.S.2d 446, lv. denied 81 N.Y.2d 762, 594 N.Y.S.2d 724, 610 N.E.2d 397).

 The verdict convicting defendant of murder in the second degree is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of defendant's expert witness that defendant acted under the influence of extreme emotional disturbance was disputed by the People's expert, and the jury properly decided the issue based upon its evaluation of the expert testimony (see, People v. Roldan, 64 N.Y.2d 821, 486 N.Y.S.2d 928, 476 N.E.2d 327;  People v. Grinan, 161 A.D.2d 325, 555 N.Y.S.2d 89, lv. denied 76 N.Y.2d 857, 560 N.Y.S.2d 997, 561 N.E.2d 897).

Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.


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