Opinion
March 11, 1994
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Pine, J.P., Fallon, Callahan, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that errors in the court's charge require reversal of defendant's conviction of murder in the second degree. The court's charge on reasonable doubt, as a whole, conveyed the proper standard to the jury and was not confusing. The court's "no inference" charge was "consistent in substance with the intent of the statute" (People v. Gonzalez, 72 A.D.2d 508; see, CPL 300.10) and did not go beyond the plain and simple language of the statute (cf., People v. La Dolce, 196 A.D.2d 49). Defendant did not object to the court's charge on accomplice corroboration, and therefore, that issue has not been preserved for our review (see, CPL 470.05; People v Velasquez, 76 N.Y.2d 905, 908). In any event, in light of the overwhelming corroborative evidence of defendant's guilt, the error, if any, is harmless (see, People v. Kimbrough, 155 A.D.2d 935, lv denied 75 N.Y.2d 814; People v. Mayo, 136 A.D.2d 748, lv denied 71 N.Y.2d 971).
We reject the contention of defendant that his right to be present at all material stages of the proceedings against him was violated when the court conducted an in-chambers conference with an FBI agent and an Assistant United States Attorney concerning a motion to quash a subpoena served by defense counsel. That conference did not involve "factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position" (People v Dokes, 79 N.Y.2d 656, 660). Similarly, defendant was not denied his fundamental right to be present at all material stages of the trial when the court questioned two sworn jurors for possible disqualification in defendant's absence (see, People v. Torres, 80 N.Y.2d 944, 945; People v. Williams, 202 A.D.2d 1004 [decided herewith]; People v. Sanders, 199 A.D.2d 1011; People v. Jack, 199 A.D.2d 980 ). Further, the contention of defendant that he is entitled to reversal or a remittal for a hearing to reconstruct the record of certain side-bar conferences conducted during the trial in his absence lacks merit because he has not alleged that his absence impacted his defense.
Finally, we conclude that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495), that the prosecutor met his obligation under Brady v. Maryland ( 373 U.S. 83) to disclose falsehoods in witnesses' testimony regarding promises of leniency (see, People v. Steadman, 82 N.Y.2d 1), and that the sentence imposed is not unduly harsh or severe.