Opinion
2000-06693
Argued November 16, 2001
December 3, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered June 28, 2000, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (M. Chris Fabricant of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Schlachet of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that his right to be present at all material stages of the trial was violated when the Trial Judge, in a sidebar conference conducted outside the presence of the defendant but placed on the record, entertained the concerns of a juror who complained that she was not feeling well and wanted to be, but was not, excused.
Contrary to the defendant's contention, such inquiry by the Trial Judge into an impaneled juror's continuing fitness to serve is not "a core segment of trial" and reversal is mandated only if the defendant's absence "might have had an effect on the opportunity to defend" (People v. Aguilera, 82 N.Y.2d 23, 34; see, People v. Pennisi, 217 A.D.2d 562). The defendant failed to establish that his presence during the subject inquiry would have had "a relation reasonably substantial to the fullness of his opportunity to defend against the charge" (Snyder v. Massachusetts, 291 U.S. 97, 105-106).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
O'BRIEN, J.P., FLORIO, SCHMIDT and SMITH, JJ., concur.