PEOPLE v. BOWMAN

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

The PEOPLE of the State of New York, Respondent, v. Gene BOWMAN, Appellant.

Decided: May 28, 2009

Before:  PETERS, J.P., SPAIN, ROSE, KANE and McCARTHY, JJ. Henry C. Meier III, Delmar, for appellant. P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 23, 2008, upon a verdict convicting defendant of the crimes of criminal possession of a forged instrument in the second degree (three counts) and petit larceny.

Following a jury trial, defendant was convicted of petit larceny and three counts of criminal possession of a forged instrument in the second degree and sentenced, as a second felony offender, to an aggregate prison term of 5 to 10 years.   Defendant's lone contention on this appeal is that he did not make a knowing and intelligent waiver of his right to be present during sidebar conferences.   We conclude that he did, and now affirm.

 It is well settled that a defendant has the right to be present at every material stage of a trial, including sidebar conferences (see People v. Velasquez, 1 N.Y.3d 44, 47, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ).   Such a right, however, may be voluntarily waived (see People v. Abdullah, 28 A.D.3d 940, 941, 813 N.Y.S.2d 805 [2006], lvs. denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ).   Here, prior to commencement of defendant's Sandoval hearing, County Court expressly asked defense counsel whether he had conferred with his client regarding the issue of appearing at sidebars.   Defendant's attorney acknowledged that he had and informed County Court that defendant was declining his right to do so.   Defense counsel's affirmative response to County Court's subsequent inquiry as to whether defendant was “waiving appearing at sidebars” was then confirmed by defendant.   We have no difficulty concluding that such a colloquy is indicative of a knowing, intelligent and voluntary waiver (see People v. Beverly, 6 A.D.3d 874, 875, 775 N.Y.S.2d 409 [2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ).   Furthermore, although defendant now asserts that the five-month time period between his Sandoval hearing and jury selection somehow nullifies the waiver, we observe that defendant failed to object to any of his absences from subsequent sidebar conferences (see People v. Jackson, 860 N.Y.S.2d 673, 52 A.D.3d 1052, 1054 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 616, 896 N.E.2d 102 [2008] ).

ORDERED that the judgment is affirmed.

McCARTHY, J.

PETERS, J.P., SPAIN, ROSE and KANE, JJ., concur.

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