PEOPLE v. FIRRIRA

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

The PEOPLE, etc., Respondent, v. Anthony FIRRIRA, Appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Maria Barous Hartofilis, Astoria, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Traci R. Turner of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered May 23, 1995, convicting him of robbery in the second degree (three counts), assault in the second degree, criminal possession of stolen property in the fourth degree (three counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 A presumption of regularity attaches to official court proceedings.   Therefore, a defendant has the burden of coming forward with substantial evidence to rebut that presumption (see, People v. Robinson, 191 A.D.2d 523, 595 N.Y.S.2d 56;  People v. Pichardo, 168 A.D.2d 577, 562 N.Y.S.2d 792;  People v. Davis, 151 A.D.2d 596, 542 N.Y.S.2d 354).   Here, the defendant failed to meet this burden in support of his allegation that he was not afforded his right to be present at the Sandoval hearing (see, People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836).

 The defendant further contends that his right to be present during the impaneling of the jury was impaired because he was absent from the conference in which counsel advised the court of their peremptory and for-cause challenges to prospective jurors.   However, since the voir dire was conducted in open court and the challenges were later formally effected in open court, when the defendant had an opportunity to consult with his attorney, this contention is unavailing (see, People v. Velasco, 77 N.Y.2d 469, 568 N.Y.S.2d 721, 570 N.E.2d 1070;  People v. Montgomery, 213 A.D.2d 563, 623 N.Y.S.2d 921, affd. 88 N.Y.2d 926, 647 N.Y.S.2d 162, 670 N.E.2d 446;  see also, People v. Cameron, 244 A.D.2d 350, 663 N.Y.S.2d 657).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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