PEOPLE v. RODRIGUEZ

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

The PEOPLE, etc., Respondent, v. Johnny RODRIGUEZ, Appellant.

Decided: June 30, 1997

Before O'BRIEN, J.P., and RITTER, GOLDSTEIN and LUCIANO, JJ. Arnold & Porter, New York City (Steven E. Shiffman, of counsel), and Daniel L. Greenberg, New York City, for appellant (one brief filed). Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Caroline R. Donhauser, and David B. Hennes, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered May 9, 1995, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that he was improperly excluded from sidebar conferences with prospective jurors which may have involved issues of bias or hostility.   A defendant seeking reversal on appeal must provide an adequate record for determining whether he or she was wrongly excluded from a material stage of the trial (see, People v. Maher, 89 N.Y.2d 318, 653 N.Y.S.2d 79, 675 N.E.2d 833;  see also, People v. Kinchen, 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786).   Here, since the record fails to disclose the subject matter of the sidebar conferences, meaningful appellate review of this issue is precluded (see, People v. Vanegas, 237 A.D.2d 469, 655 N.Y.S.2d 965;  People v. McCargo, 219 A.D.2d 683, 631 N.Y.S.2d 407, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264, cert. denied 518 U.S. 1008, 116 S.Ct. 2530, 135 L.Ed.2d 1054).

The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05[2] ) or without merit (see, People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Simmons, 213 A.D.2d 433, 623 N.Y.S.2d 309;  People v. Johnson, 208 A.D.2d 562, 563, 617 N.Y.S.2d 27).

MEMORANDUM BY THE COURT.

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