Opinion
February 4, 1994
Appeal from the Monroe County Court, Connell, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that his absence from the side-bar questioning of a prospective juror concerning her acquaintance with a witness for the prosecution requires reversal. We disagree. The questioning of the prospective juror occurred in the presence of counsel after she responded in the affirmative to the court's inquiry whether any of the prospective jurors was "familiar with" any of the prospective witnesses scheduled to testify. Immediately after the side-bar conference, the prospective juror was excused. We conclude that, under the circumstances of this case, "defendant['s] presence at the side-bar questioning would have been of no benefit" and defendant's "absence during such questioning would not have had a substantial effect on [defendant's] ability to defend" (People v. Sloan, 79 N.Y.2d 386, 393; see, People v. Velasco, 77 N.Y.2d 469, 473; People v Johnson, 201 A.D.2d 965 [decided herewith]; People v. Siler, 197 A.D.2d 842).
We further conclude that the court did not abuse its discretion in permitting the prosecutor to cross-examine defendant, in the event he testified at trial, regarding his 1985 conviction for forgery (see, People v. Sandoval, 34 N.Y.2d 371; People v. Young, 178 A.D.2d 571, lv denied 79 N.Y.2d 955).
Defendant failed to preserve for our review his contention that the prosecutor's comments during summation shifted the burden of proof to defendant and we decline to review that issue in the interest of justice. There is no merit to defendant's contention that the trial court's charge on reasonable doubt had the effect of reducing the People's burden of proof (see, People v. Bryan, 191 A.D.2d 1029, 1030-1031, lv denied 82 N.Y.2d 714; see also, People v. Antommarchi, 80 N.Y.2d 247, rearg denied 81 N.Y.2d 759). Lastly, we reject defendant's contention that the court was required to conduct an independent inquiry to determine whether defendant was aware of his right to testify and whether defendant knowingly, intelligently and voluntarily waived that right (see, People v. Russell, 192 A.D.2d 1102, lv denied 81 N.Y.2d 1080; People v. Burroughs, 191 A.D.2d 956, 957, lv denied 82 N.Y.2d 715).