Opinion
March 7, 2000.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered April 1, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to three concurrent terms of 8 1/4 to 16 1/2 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to three concurrent terms of 6 to 12 years, and otherwise affirmed. Judgment, same court and Justice, rendered November 18, 1998, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, concurrent to the sentences imposed on defendant's conviction after trial, unanimously affirmed.
Before: Rosenberger, J.P., Wallach, Andrias and Friedman, JJ.
Other than excepting to an aspect of the court's interested witness charge that the court promptly remedied to defendant's satisfaction ( see, People v. Whalen, 59 N.Y.2d 273, 280), defendant did not protest any of the jury instructions or lack of instructions now challenged on appeal, and we decline to review these unpreserved claims in the interest of justice. Were we to review these claims, we would find that the charge, read as a whole, conveyed the proper standards concerning each of the subject matters in question ( see, People v. Knight, 87 N.Y.2d 873; People v. Fields, 87 N.Y.2d 821; People v. Agosto, 73 N.Y.2d 963, 967).
The statements by defendant and counsel and an entry on the clerk's worksheet establish that defendant waived his right to be present at sidebars throughout jury selection, and particularly as to the sidebar at issue on appeal ( see, People v. Leonor, 245 A.D.2d 22, lv denied 92 N.Y.2d 855).
We find the sentence imposed upon defendant's conviction after trial excessive to the extent indicated.