PEOPLE v. GREEN

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

The PEOPLE of the State of New York, Respondent, v. Kareem GREEN, also known as Kareem Ousmane, Defendant-Appellant.

Decided: September 18, 2008

MAZZARELLI, J.P., ANDRIAS, SAXE, FRIEDMAN, ACOSTA, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Linklaters, New York (Bridget D. Farrell of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Allen J. Vickey of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 29, 2007, convicting defendant, after a jury trial, of tampering with physical evidence and sale of an imitation controlled substance, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimously affirmed.

 Defendant's legal sufficiency argument concerning his tampering with physical evidence conviction is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also find that the verdict was based on legally sufficient evidence.   Furthermore, the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   Defendant's course of conduct supports the inference that when he put an unknown object into his mouth, he was aware that he was about to be arrested, and supports the additional inference that the object was contraband or evidence that defendant intended to prevent the police from discovering.

 Defendant's statutory right to be present at material stages of the trial was not violated by his absence from sidebar conferences at which counsel exercised challenges to potential jurors, inasmuch as the questioning of prospective jurors was conducted in defendant's presence in open court and he was afforded an opportunity to consult with counsel prior to counsel's exercise of those challenges (see People v. Mieles, 254 A.D.2d 436, 680 N.Y.S.2d 262 [1998], lv. denied 92 N.Y.2d 1051, 685 N.Y.S.2d 430, 708 N.E.2d 187 [1999];  People v. Smith, 205 A.D.2d 458, 613 N.Y.S.2d 885 [1994], lv. denied 84 N.Y.2d 872, 618 N.Y.S.2d 18, 642 N.E.2d 337 [1994] ).   Defendant's absence from such sidebars had no effect on his opportunity to defend in light of the fact that his attorney was only performing the ministerial task of exercising the challenges to which defendant had agreed.   Since only legal and administrative matters were discussed at the sidebars at issue, defendant's presence was not required (see People v. Velasco, 77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070 [1991];  People v. Haywood, 280 A.D.2d 282, 282-283, 721 N.Y.S.2d 8 [2001] ).